R. v. B.M.F., 2020 BCPC 299

Citation: R. v. B.M.F. 2020 BCPC 299 Date: 20200211 File Nos: 89213-2-A, 89213-4-A, 89312-5-C, 89213-6-A, 89213-7-E, 92047-1 89213-4-A, 89312-5-C, 89213-6-A, 89213-7-E, 92047-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. B.M.F. PUBLICATION BAN Pursuant to s. 486.4(2) of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BURNETT Counsel for the Crown: D. Grabavac Counsel for the Defendant: C. Hatcher Place of Hearing: Kelowna , B.C. Dates of Hearing: December 16, 17, 2019 and January 23, 2020 Date of Sentence: February 11, 2020

[ 1 ] THE COURT: These are my reasons for sentence. B.M.F. comes before the court for sentencing. He has entered guilty pleas to 12 charges.

They are as follows: Count 3 of Information 89213-5-C, sexual exploitation of E. contrary to s. 153 of the Criminal Code ; Count 5 of Information 89213-5-C, wilfully obstructing or attempting to obstruct justice by telling E. to destroy evidence of a criminal offence; Count 1 of Information 89213-2-A, breaching a term of his undertaking by having contact with E.; Count 3 of Information 89213-2-A, breaching a term of his undertaking or recognizance by having communication with E. from June 1st, 2018, to June 22nd, 2018; Count 1 of Information 89213-4-A, breaching a term of his recognizance by having contact with a person under the age of 18 on September 30th; Count 1 of Information 89213-6-A, that between July 4, 2018, and October 4, 2018, he breached a term of his recognizance by having contact with E.; Count 4 of Information 89213-6-A, that between July 4, 2018, to October 4, 2018, he breached a term of his recognizance by being in possession of a device capable of accessing the Internet; Count 6 of Information 89213-6-A, that between October 18, 2018, and April 15, 2019, he breached a term of his recognizance by having contact with E.; Count 8 of Information 89213-6-A, that between October 18 and April 15, 2019, he breached a term of his recognizance by possessing a device capable of accessing the Internet; Count 9 of Information 89213-6-A, that between April 15, 2019, to June 30, 2019, he breached a term of his recognizance by having contact with E.; Count 11 of 89213-6-A, that between April 15, 2019, to June 30, 2019, he breached a term of his recognizance by having a device capable of accessing the Internet; and Count 1 of Information 92047-1, that on June 19th, he wilfully attempted to obstruct of pervert justice by telling E. to destroy evidence of a criminal offence. [ 2 ] The Crown proceeded by indictment on Counts 3 and 5 of Information 89213-5-C, summarily on Counts 1 and 3 of Information 89213-2-A and Count 1 of Information 89213-4-A, and by indictment on Counts 1, 4, 6, 8, 9, and 11 of Information 89213-6-A and the single count of Information 92047-1.

The most serious of the charges being the sexual exploitation charge has a minimum one-year jail sentence and a maximum jail sentence of 14 years. The attempt to obstruct justice charges have a maximum jail sentence of 10 years. The breach of bail charges that the Crown chose to proceed summarily have maximum jail sentences of six months and those that the Crown chose to proceed by indictment have maximum sentences of two years. [ 3 ] The Crown is seeking a total jail sentence of five years and 11 months. The accused is seeking a total jail sentence of between two to three years.

The Facts [ 4 ] B.M.F., who is now 30 years old, was previously a teacher employed by School District 23. During the 2017 to 2018 school year, he was teaching at [omitted for publication] in [omitted for publication]. He was 28 to 29 years old. The complainant, E., was a student in grade 12 at [omitted for publication]. She was 17 years old during her grade 12 year. B.M.F. was familiar with E. as he was her mentoring teacher when she was in grade seven at [omitted for publication]. E.'s sister, M., was a grade 10 student at [omitted for publication] during the 2017 to 2018 school year.

He had been her math teacher the previous year. [ 5 ] B.M.F. was the teacher supervisor of a number of school clubs both E. and M. were members of. These included the [omitted for publication] and the [omitted for publication]. During the 2017 to 2018 school year, E. and B.M.F. became friends because of a mutual interest in gaming. During spring break of 2018, the two of them began to communicate via Discord, an Internet-based app commonly utilized by gamers. The initial conversations between the two of them revolved around gaming and certain aspects of their personal lives.

Things, however, rapidly progressed to the point where the tone of the conversations became more sexual in nature. [ 6 ] Once B.M.F. and E. returned to [omitted for publication] after the spring break, they embarked on a sexual relationship. This included oral sex on two occasions and sexual intercourse on nine occasions.

The initial act of sexual intercourse occurred at B.M.F.'s residence and the remaining eight acts of sexual intercourse occurred in his classroom which was in a portable separated from the main campus at [omitted for publication]. [ 7 ] On May 1, 2018, as a result of concerns regarding the manner of interactions between E. and B.M.F. that had been brought to the attention of the principal at [omitted for publication], E. was interviewed by him and the vice principal.

During the course of the interview, she disclosed the relationship between her and B.M.F. and how it had progressed from texting, then sexting, and ultimately sexual intercourse. [ 8 ] While E. was being interviewed, B.M.F. was meeting with School District 23 officials including the Assistant Director of Human Resources. He was being questioned regarding the nature of his relationship with E. In the course of this meeting, he was asked to disclose the contents of the Discord communications between he and E. He refused to do so.

He was then told that if he should destroy or delete any of the communications, he could face serious consequences. He was also told not to have any future communication in any form with E. [ 9 ] Immediately following his meeting with the School District 23 officials and while E. was meeting with the principal and vice principal, he emailed E. the following: Delete discord now. All conversations. No communication. Sign into my discord Back2$chool pswd and delete anything bad. Each message. And I am suspended. They know we talked on Snapchat, discord, and text for about 3 weeks.

A few times a week, youd come to my portable. I didnt let them see discord. [ 10 ] The RCMP became involved and E. was interviewed. She disclosed to the investigating officer the duration and extent of the relationship between her and B.M.F. She said the sexual activity was consensual and she was concerned the investigation would ruin his career and life. [ 11 ] The investigating officer seized E.'s phone and examined the Discord conversations. He located approximately 2,700 pages of

conversations between B.M.F. and E. These conversations occurred between March 16, 2018, to May 1, 2018. Initially, they involved discussions regarding gaming. They then progressed to discussions regarding difficulties in each other's personal lives including very personal intimate details. Then they became sexual in nature and including sexting conversation. [ 12 ] B.M.F. was arrested on the evening of May 1, 2018. He was released on an undertaking given to a peace officer with conditions that included he have no contact or communication with E. or any other person under the age of 18.

On June 1, 2018, he applied to vary the undertaking to avoid inadvertent breaches and allow him to communicate with family members who were under the age of 18. He appeared before Judge Tam and the undertaking was replaced with a recognizance of bail. It included conditions that he have no contact or communication with E. or anyone under the age of 18. [ 13 ] He immediately breached the undertaking by having contact with E. initially at her place of employment and then via email. He and E. continued to communicate daily and he met her two or three times at the Walmart parking lot in [omitted for publication].

On those occasions, they talked and kissed. He breached the initial recognizance by continuing to do so after June 1, 2018. [ 14 ] On June 23, 2018, B.M.F.'s spouse became aware that the accused was continuing to have contact with E. She informed the RCMP who subsequently interviewed E. and she confirmed that she and the accused were in contact.

B.M.F. was arrested on June 28, 2018, for breaching both the undertaking and the initial recognizance. [ 15 ] He remained in custody for 12 days and then appeared before Judge Shaw on July 3, 2018, and was released on a recognizance of bail with a $5,000 cash deposit and one surety, (the “Second Recognizance”).

His release conditions became more onerous and, in addition to conditions that he have no contact or communication with E. or anyone under the age of 18, it included conditions that he abide by a curfew, that he not possess any devices capable of accessing the Internet, and that he not possess or use a cellphone. The initial recognizance remained in place. As a result, he was subject to two recognizances of bail. [ 16 ] B.M.F. immediately breached both recognizances by having contact with E.

He communicated with her via Outlook and then met her two to three times per week thereafter and the two of them continued to be sexually intimate. On September 30, 2018, he had contact with E.'s younger sister, M., who was working as a cashier at the [omitted for publication] in [omitted for publication]. B.M.F. approached her at her till and opened up a spiral notebook he had with him to a page that had the phrase, "I am sorry" on it. He then turned the page to reveal the next page which had written on it, "I miss you." M. told him to get out of the store.

As M. was under the age of 18, B.M.F. had breached a condition of both the initial recognizance and the Second Recognizance. [ 17 ] He was arrested on October 3, 2018. He remained in custody for just over two weeks prior to appearing before Judge Burdett on October 17, 2018, at which time he, once again, was released on a recognizance of bail, the Third Recognizance. Judge Burdett cancelled the initial recognizance and the Second Recognizance, increased the cash deposit from $5,000 to $10,000 with one named surety, B.M.F.'s mother, and placed him on numerous conditions.

They included that he not have contact with E., M., or anyone under the age of 18 years; that he remain under house arrest; and that he not possess any device capable of accessing the Internet or communicating with another person. [ 18 ] On October 25, 2018, B.M.F. appeared before Judge Wyatt to amend the house arrest condition of the Third Recognizance. The amendment was granted. All other conditions of the Third Recognizance remained. He immediately breached the Third Recognizance by contacting E.

He did so utilizing a Samsung tablet he had purchased from a pawnshop and using the Internet communication tool, Skype. He and E. communicated via Skype daily. In addition to the Skype communications, the accused had E. come to his residence and place of employment where the two of them continued to be intimate. [ 19 ] On February 28, 2019, B.M.F. entered guilty pleas to the sexual exploitation charge, the attempt to obstruct justice charge of May 1, 2018, and a number of the breach-of-bail charges.

Presentence and psychological reports were ordered and sentencing was adjourned. [ 20 ] On April 15, 2019, B.M.F. appeared before Judge Tam on an application to vary the Third Recognizance. He sought to have the no-contact condition with E., the house arrest, and the Internet access and not-possess-electronic-devices conditions removed. Judge Tam varied the Third Recognizance to allow B.M.F. a limited access to the Internet and to possess devices capable of accessing the Internet including cellphones under certain parameters. The other variations sought by B.M.F. were refused.

He, in breach of his bail, continued to communicate and have contact with E. [ 21 ] In May and June of 2019, E. began to question her involvement in the relationship with B.M.F. and ultimately in June it ended. On June 19, 2019, B.M.F. told E. via Skype to sign out of Skype and delete it. On July 23, 2019, E. went to the [omitted for publication] RCMP detachment and informed officers that she and B.M.F. had been communicating and seeing each other since October of the previous year. The RCMP that same day executed a search warrant at B.M.F.'s residence and recovered the Samsung tablet.

The tablet was examined and the Skype communications between him and E. from April 6, 2019, to June 19, 2019, were discovered. In total, there were 10, 242 messages and 48 calls between them. On July 30, 2019, B.M.F. was arrested. He has remained in custody since his arrest. B.M.F.'s Personal Circumstances [ 22 ] B.M.F. is presently 30 years old. He was born and raised in Kelowna. He resides with his parents and younger sister. His older brother is a member of the Royal Canadian Air Force and resides out of province. He had a supportive and stable upbringing with loving parents.

He attended [omitted for publication] and graduated in 2007. He attended UBCO and attained a Bachelor of Science in 2011. In 2012, he completed his Bachelor of Education and commenced his career as a teacher shortly thereafter. [ 23 ] He met his former wife, [omitted for publication], in high school in grade nine. They dated in high school and were married in 2010. The marriage was one in which there was a significant lack of emotional and physical intimacy.

Although [omitted for publication] continued to support B.M.F. after the relationship with E. was exposed, once she became aware of his ongoing contact with her, it dissolved. [ 24 ] Following his suspension from teaching, he secured employment with his father's employer, [omitted for publication]. He has no

criminal record. [ 25 ] The initial presentence report prepared by PO Charlton was not favourable to B.M.F. in that it clearly showed he had not fully accepted or understood that he had embarked on an inappropriate relationship with E. He displayed no remorse for his actions. The follow-up report prepared shortly after he was incarcerated did not find any change in his attitude or understanding of his offending behaviour. [ 26 ] Dr. Burnett, like PO Charlton, prepared an initial and follow-up report. He also testified at the sentencing hearing.

In his initial report, he stated the following: At the time of the index offences, B.M.F. was in a marriage marked by significant and longstanding difficulties. Severe deficits to intimacy (both physical and emotional) were prominent. High levels of negative affectivity were present. B.M.F.'s abilities to cope with negative affectivity were underdeveloped. He was generally passive and under-assertive within the relationship. To avoid the negative affectivity within his marital relationship, B.M.F. focused his time and energy on school. School was a positive environment for B.M.F.

B.M.F. found it easier to be himself and to connect with students, as compared to adults. B.M.F.'s level of social maturity appears to be limited. B.M.F. began to meet his needs for affiliation and friendship through his students. As a rule, B.M.F. maintained very poor teacher-student boundaries - this condition facilitated the eventual onset of his offending behaviours. B.M.F. seemed to attribute more adult-like qualities to students (including E.) than was appropriate. B.M.F. did not have a developed understanding of the power dynamics and potential for coercion inherent in his position as a teacher.

B.M.F. seemed to interpret the E.'s compliance as a sign of mature consent. Once initiated, his offending behaviour escalated quickly. B.M.F. has shown a very poor response to supervision. [ 27 ] As to B.M.F.'s risk to reoffend, he stated that he was at an average level of risk for acquiring a future sexual charge or conviction relative to other sexual offenders. Compared to other sexual offenders, B.M.F.'s risk for sexual recidivism is neither high nor low. In his testimony, Dr. Burnett said that B.M.F. is not a predatorial grooming type of sex offender.

He is not attracted to prepubescent individuals and has no paraphilic or deviant sexual interests. He does exhibit insight, remorse, and victim empathy. He can be expected to have positive treatment outcomes and that an average risk to reoffend under previous classifications methods would have meant that he would have been classified as a low to medium risk. [ 28 ] Prior to his incarceration, B.M.F. sought assistance on his own from a registered psychologist, Dr. Maniago. He attended 14 psychotherapy sessions with Dr. Maniago between July 2018 and July 2019.

While incarcerated, he has participated in the limited programming available to him at the correction facility. [ 29 ] He has supportive and loving parents, siblings, extended family members, and friends. Letters of support from them were filed at the hearing. They all speak highly of him. Most importantly, the authors identify that he has spoken openly to them about the remorse and regret he has for his actions towards E. [ 30 ] He has written letters of apology to E., M., and their parents.

Within them, he accepts full responsibility for his actions in pursuing a relationship with E. and the harm to her that has resulted from it. He appears to have gained some insight into his offending behaviour and the significant impact it had on E. and her family. Mitigating and Aggravating Circumstances [ 31 ] In considering what is a fit sentence, I must consider all mitigating and aggravating factors. As Judge Koturbash stated in R. v.

Roberts , 2015 BCPC 266 , at paragraph 41 , aggravating and mitigating factors may tend to: … increase or decrease the gravity of the offence and/or the moral blameworthiness of the offender." Mitigating Factors 1. Guilty Pleas [ 32 ] B.M.F. entered guilty pleas to the offences at an early stage. Of particular significance is the fact that at the time he did so he was still engaged in the relationship with E. As such, there was no guarantee she would have been a cooperative witness for the Crown.

His guilty pleas have spared E. and her sister, M., from stress and further traumatization of having to participate in a trial. 2. Lack of Criminal Record [ 33 ] B.M.F. has no criminal record. He comes before the court as a first-time offender. 3. Age [ 34 ] At 30 years of age, he is a relatively young man. 4. Remorse [ 35 ] He has expressed in writing and in open court genuine remorse for his conduct towards E., M., and their parents. I accept that he now appreciates the gravity of his offending behaviour and its impact on E., her sister, and parents. 5.

Publicity [ 36 ] His offending behaviour has attracted much media scrutiny and will continue to follow him throughout his life. The ability for him to secure employment and become an active participant in a community after he has completed his sentence may well be significantly impacted. I am mindful, however, of the observations of Judge Koturbash in R. v. Roberts where he states: … giving too much credit for public embarrassment is counterintuitive to the sentencing process when the circumstances of the offence,

such as this one, elevate the objectives of denunciation and deterrence to paramountcy. Aggravating Factors 1. Duration of Offending Behaviour [ 37 ] B.M.F. committed offences over a period in excess of one year. While his offending behaviour involving sexually exploiting E. occurred over only several weeks in 2018, he continued to pursue the relationship with her in the face of repeated court orders to refrain from communicating or contacting her. 2. Age Difference [ 38 ] B.M.F. was 11 years older than E. at the time of his offending behaviour. 3.

Age of the Complainant [ 39 ] Pursuant to s. 718.2 (a)(ii.1) of the Criminal Code , I must consider as an aggravating factor that E. was under the age of 18 at the time of the offence. I may do so notwithstanding that the age of the complainant is an essential element of the offence, see R. v. S.C.W. , 2019 BCCA 405 . 4. The Sexual Touching [ 40 ] B.M.F. engaged in the full range of sex acts with E. including oral sex and intercourse. 5.

Breach of Trust [ 41 ] Pursuant to s. 718.2 (a)(iii) of the Criminal Code , I must consider as an aggravating factor that B.M.F. breached a position of trust or authority in committing the offence. In Roberts , the court said: Not all positions of trust or authority are treated equally. The seriousness will increase in line with the level of trust breached. The extent to which the nature and degree of trust will increase the seriousness depends on a careful assessment of the circumstances of each case including the type and terms of the relationship between the offender and the victim.

Obviously, the higher degree of trust the more severe the sentence. 6. The Location of the Offending Behaviour [ 42 ] On many occasions, B.M.F. engaged in intimate sexual acts with E. in his portable classroom at [omitted for publication] prior to the commencement of classes. 7. Ignoring the Court's Orders [ 43 ] B.M.F. repeatedly and almost immediately after they were pronounced ignored the conditions in his various bail documents requiring him to have no communication or contact with E. 8. Vulnerability of the Complainant [ 44 ] B.M.F. knew that E. was under the age of 18.

He knew that she was struggling emotionally with a variety of issues including her sexual orientation at the time he initially began communicating with her in the spring of 2018. Rather than assisting her in securing appropriate supports for her emotional difficulties, he exploited them to allow the relationship between he and her to become both physical and emotionally intimate. 9. Impact on E. and Her Family [ 45 ] The victim impact statements submitted by E., M., and her parents detail the significant consequences arising from B.M.F.'s actions in embarking on the relationship with E.

E. has become depressed and has grappled with suicidal thoughts. She felt as though she had lost her family and friends and was a nobody. She believed that she was a bad daughter and sister and that no one would miss her if she committed suicide. She is on antidepressants and participating in counselling. [ 46 ] Her sister, M., believes E. betrayed her trust by continuing the relationship with B.M.F. She says she has a feeling of the loss of her closest friend. E.'s parents described a loss of a previously close relationship between them and their daughter.

They have experienced significant stress in grappling with E.'s mood and risk of suicide. The Purpose and Principles of Sentencing [ 47 ]

Section 718 to 718.2 of the Criminal Code set out the purposes and principles of sentencing.

Section 718 sets out the statutory objectives I must consider when imposing a sentence. They are (

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 acknowledgment of the harm done to victims or to the community. [ 48 ]

Section 718.1 requires that that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 requires I consider all mitigating and aggravating factors, and that when consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. Case Law [ 49 ] Between the Crown and the defence, I have been provided 43 case authorities regarding sentences that have been imposed for offenders who have been found guilty or pled guilty to similar offences B.M.F. is being sentenced for. I have read and considered all of them in formulating my decision. I do not intend to address each one of them in my reasons.

I order the index of authorities referred to by the Crown and the defence be placed in the court file and, should a transcript of my reasons be produced, copies of them be attached as an appendix. Sexual Exploitation [ 50 ] A review of the authorities regarding sexual exploitation offences involving teachers makes it clear that the primary sentencing principles that apply are that of denunciation and deterrence. As Justice Schultes stated in R. v.

Careen , 2012 BCSC 918 , at paragraph 27 : It goes … without saying that denunciation and general and specific deterrence must be given significant emphasis in any sentencing for this type of offence. The whole purpose of this section's existence is to protect young persons, who may be physically mature, but who still lack the emotional or intellectual maturity to safeguard their own sexual integrity from being exploited by those adults who have unique access and potential influence over them by virtue of a position of trust. A teacher is a classic example of such a person.

Society must express its collective condemnation of conduct that seeks to make use of vulnerable youth in this manner and the general message must go out, through the sentences imposed, that those who might be tempted to engage in it can expect significant consequences. [ 51 ] The cases establish a broad range of sentences. They range from a low of a 60-day intermittent jail sentence to as lengthy as 29 months' jail. Some of the cases involved decisions when the mandatory minimum was less than the current minimum one-year jail. In some of the cases, the Crown proceeded summarily.

In others, the Crown proceeded by indictment. Each case, of course, turns on its particular facts. [ 52 ] I am cognizant of the fact that all of the cases provided to me by the parties involve sexual exploitation offences that were decided prior to the most recent amendments to the Criminal Code in July of 2015 pursuant to which the maximum penalty for the offence when the Crown proceeds by indictment was increased from 10 years' jail to 14 years' jail. The minimum jail sentence of one year was not increased.

I accept that in doing so, it was Parliament's intention to reflect Canadians' condemnation of this type of offending behaviour and an expectation that offenders who are guilty of this type of offence may expect to receive a sentence greater than when the maximum penalty was less. [ 53 ] In R. v. Smith , 2017 BCPC 265 , Judge Challenger of this court said at paragraph 47: In my view, sentences should be higher for victims who are younger and where the offender is in an elevated position of authority or trust, such as when they act as foster parents in addition to, or after their role as an educator.

Taking advantage of any particular vulnerabilities of the victim should also be considered. Clearly, any use of force, coercion or threats should also increase the length of sentence. The nature of the sexual acts should also be considered as well as the length of time over which the victim was exploited. [ 54 ] The lengthiest jail sentence imposed by this court for a sexual exploitation offence involving a teacher-student relationship was two years' jail, R. v. Dodd , November 14, 2017, Dawson Creek Registry File 33060. The circumstances of the offender and the offending behaviour of Mr.

Dodd were more egregious than the circumstances before me. The age difference between Mr. Dodd and his victim was significant. She was 15. He was 53. He engaged in sexual acts with her without birth control. The risk of pregnancy was high. [ 55 ] The case with the most similar facts as the case before me is the Alberta Provincial Court decision of R. v. Miller , 2013 ABPC 323 . Mr. Miller was a high school teacher at the complainant's school. He was previously her classroom teacher, but at the time of his offending behaviour was no longer her classroom teacher, but was tutoring her in biology.

The complainant was 17 years old when the two of them began a sexual relationship. Their sexual activities progressed from kissing to ultimately intercourse. This occurred over several weeks. [ 56 ] Once his actions were discovered, he was arrested and released on bail. He breached his bail by continuing to have contact with the complainant. He pled guilty and received a jail sentence of 29 months for the sexual exploitation and one-day consecutive for the breach offence.

I remind myself that sentences imposed by courts in Alberta are often higher than what our courts generally impose for similar offences involving similar offenders. I find the decision in the Miller case to be most instructive because it so closely mirrors the facts involving B.M.F. Attempt to Obstruct Justice [ 57 ] As with the sexual exploitation cases, the authorities establish a broad range of sentences for this criminal act. In R. v.

Hall , 2001 BCCA 74 , Justice Lambert speaking for the court at paragraph 12 stated: However, I should say something in particular about the offence of attempting to obstruct justice. Obstruction of justice also is a serious offence … Obstruction of justice or attempting to obstruct justice strikes at our system of a lawful society. The message must be clear that this type of interference with the community system for handling criminal offences will not be tolerated. It is for this reason that the courts must act firmly to express society's disapproval and denunciation of such conduct.

[ 58 ] He went on to express an opinion that three months' jail was at the low end of the range as an appropriate sentence for this offence. The attempted obstruction involved attempting to convince a witness to the accused's aggravated assault to fabricate a version of the events surrounding the assault and threatening that potential witness if he did not agree to do so. [ 59 ] In R. v. Donnelly , (B.C.S.C.), 2010, 1523, Justice Schultes, in sentencing the accused for attempting to obstruct justice, noted that the sentencing range in the cases presented to him was between four months and four years.

He noted that where a particular offender falls within that range depends on several factors including if the obstruction involved the attempt to dissuade a witness from testifying, the nature of the dissuasion, and whether the obstruction actually succeeded in affecting the underlying prosecution. [ 60 ] Mr. Donnelly had participated in the drafting of a letter from a complainant that involved her untruthfully recanting her statement to the police that Mr. Donnelly had assaulted her. The letter resulted in the charge of assault not proceeding. Mr.

Donnelly was sentenced to six months' jail. [ 61 ] B.M.F., in instructing E. to delete the communications between them that would implicate him in the sexual interference offence and subsequently the breach-of-bail offences, did not threaten her with harm if she did not do so. He did not suggest to her that she fabricate evidence. His actions in asking her to do so did not impede the investigation nor impact the subsequent prosecution. In the circumstances, his sentence for the first attempt should be at the lower end of the range.

However, as he had pled guilty and was awaiting sentencing when he committed the second attempt, a higher sentence should be imposed. Breach of Bail [ 62 ] The Crown in its submissions had emphasized the uniqueness of the facts in the case before me regarding B.M.F.'s repeated and almost immediate breaching of the court's bail orders with respect to contacting E. None of the cases I was provided by the Crown or the defence involved similar circumstances. In R. v. Farewell , [2019] N.J.

No. 198 (NL PC) , the court stated that the range of sentence for a breach of a court order is between a month or less to six months in custody and the sentence for the offence is almost always ordered to be served consecutively to the concomitant substantive offence. I agree with the court's decision in that regard. [ 63 ] In R. v. Bilotta , 2015 BCSC 181 , Justice Joyce, when dealing with a

summary conviction appeal of the accused, was not persuaded that the sentencing judge erred in sentencing the accused to 120 days' jail arising from multiple consecutive sentences for a number of breaches of bail orders requiring no contact with his domestic partner. [ 64 ] The court's orders must be respected. It is a serious affront to our justice system when they are not. This is particularly so where the order that is violated, as in this case involving B.M.F., is put in place to protect a victim of an accused's offending behaviour.

Breaching of the court's orders mandates a sentence that focuses on denunciation and deterrence. B.M.F., by repeatedly ignoring multiple judges' orders not to contact E., showed a complete disregard for the authority of the court. He remained in continuous breach of these orders from the date of his initial arrest in May of 2018 to June of 2019. His conduct requires a sentence that brings home to him and others the importance of respecting a court's orders. [ 65 ] B.M.F., commencing in the spring of 2018, embarked on an entirely inappropriate sexual relationship with a student in his school.

She was a vulnerable 17-year-old. He persuaded her to engage in the most intimate of sexual acts in his portable classroom at [omitted for publication]. He failed in his duty as a teacher to nurture and protect someone whose parents had entrusted to him to care for. Instead, he exploited her for his personal satisfaction. [ 66 ] Upon his superiors at [omitted for publication] becoming aware of his action and the inevitable involvement of the police, he told E. to delete and destroy the evidence that would expose their relationship and his wrongdoing.

Upon his arrest rather than immediately end the relationship and in breach of repeated court orders, he continued to foster it by having communication and contact with her in excess of a year. When E. became disillusioned with the relationship and aware of how destructive it was for her and her family and told B.M.F. that she needed to end it, he once again told her to destroy and delete the evidence that would expose his continued breach of various court orders.

He did so at a time when he had already pled guilty to the exact same offence arising from his actions in the spring of 2018. [ 67 ] His actions have had a profound detrimental impact on E. and her family. His actions have had a significant impact on his former teaching colleagues. He has tarnished the profession with his selfish decision to involve himself in the relationship with E. He, with impunity and complete disregard for the consequences, repeatedly ignored the court's orders to refrain from communicating or having contact with E.

B.M.F.'s actions must be denounced and his sentence must deter others from engaging in similar criminal conduct. [ 68 ] I am mindful, however, that B.M.F. has a strong prospect for rehabilitation. He is a young man who appears to have arrived at an understanding of how wrong his actions were and the impact it had on E. and her family.

I am also mindful of the principle of totality and that my sentence must not be unduly long or harsh. [ 69 ] B.M.F., please stand. [ 70 ] Having carefully considered the purpose and principles of sentencing and determined that for all of the offences you have pled guilty to, the primary sentencing objectives are denunciation and general deterrence. I have considered and applied the mitigating and aggravating factors.

I have considered the authorities provided to me by both the Crown and your counsel and, being mindful of the principles of rehabilitation and restraint, I have determined that the fit, just, and appropriate sentences for the charges you have pled guilty to are as follows: Count 3 of Information 89213-5-C, being the sexual interference, the sentence I would have imposed before granting any credit is 20 months' jail or 600 days. The actual time spent in custody on this information is 16 days. I credit you at a rate of one-and-a-half days for each day in custody resulting in a total credit of 24 days.

The total sentence imposed is 576 new days' jail. [ 71 ] Count 5 of Information 89213-5-C, being the first attempt to obstruct justice, I impose a sentence of four months', 120 days', jail consecutive. [ 72 ] Count 1 of Information 89213-2-A, being the breach of undertaking by having contact with E., the sentence I would have

imposed before granting any credit is one month's jail, 30 days, consecutive to all other sentences. The actual time spent in custody on this information is seven days. I credit you at a rate of one-and-a-half days for each day in custody resulting in a total credit of 11 days.

The total sentence imposed is 19 days' jail consecutive to all other sentences. [ 73 ] Count 3 of Information 89213-2-A, being the breach of the initial recognizance by having contact with E., I impose of a sentence of one-month jail, 30 days, consecutive to all other sentences. [ 74 ] Count 1 of Information 89213-4-A, being the breach of the Second Recognizance by having contact with M., I impose a sentence of one-month jail, 30 days, consecutive to all other sentences. [ 75 ] Count 1 of Information 89213-6-A, being the breach of the initial recognizance by having contact with M., the sentence I would have imposed before granting any credit is two months' jail, 60 days, consecutive to all other sentences.

The actual time spent in custody on this information is 197 days. I credit you at a rate of one-and-a-half days for each day in custody resulting in a total credit of 296 days.

I apply 59 days of credit resulting in a sentence of one-day jail consecutive to all other sentences. [ 76 ] Count 4 of Information 89213-6-A, being the breach of the Second Recognizance by possessing a device capable of accessing the Internet, the sentence I impose is two months' jail concurrent to all other sentences. [ 77 ] Count 6 of Information 89213-6-A, being the breach of the Third Recognizance by having contact with M., the sentence I would have imposed before granting any credit is three months' jail, 90 days, consecutive to all other sentences.

The actual time spent in custody on this information is 197 days. I credit you at a rate of one-and-a-half days for each day in custody resulting in a total credit of 296 days.

I apply 89 days of credit resulting in a sentence of one-day jail consecutive to all other sentences. [ 78 ] Count 8 of Information 89213-6-A, being the breach of the Third Recognizance by possessing the Samsung tablet, the sentence I impose is three months' jail, 90 days, concurrent to all other sentences. [ 79 ] Count 9 of Information 89213-6-A, being the breach of the Third Recognizance by having contact with M. after April 15, 2019, the sentence I impose is four months' jail, 120 days, concurrent to all other sentences. [ 80 ] Count 11 of Information 89213-6-A, being the breach of the Third Recognizance by possessing the Samsung tablet from after April 15, 2019, the sentence I impose is four months' jail, 120 days, concurrent to all other sentences. [ 81 ] Count 1 of Information 92047-1, being the second attempt to obstruct justice, the sentence I would have imposed before granting any credit is six months' jail, 180 days, consecutive to all other sentences.

The actual time spent in custody on this information is 197 days. I credit you at a rate of one-and-a-half days for each day in custody resulting in a total credit of 296 days. I have already applied 148 days' credit to the other sentences leaving 148 days' credit to apply resulting in a sentence of 32 days' consecutive to all other sentences. [ 82 ] By way of

summary, the total sentence I have imposed is three years and two months' jail or 1,140 days. I have given you credit of 11 months and one day, 331 days, resulting in a sentence of just under two years' and three months', 809 days new jail time to be served. Ancillary Orders No Contact [ 83 ] The warrant for committal shall be endorsed with the following order: Pursuant to s. 743.21(1) of the Criminal Code , you must have no contact or communication with E., M., D., or J. DNA [ 84 ] Count 3 on Information 89213-5-C is a primary designated offence.

Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. SOIRA [ 85 ] Pursuant to s. 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for 20 years. Victim Fine Surcharge [ 86 ] The only counts that attract a victim fine surcharge are Counts 9 and 11 of Information 89213-6-A. As the Crown proceeded by indictment, you must pay a victim fine surcharge of $200 per count for a total of $400. It must be paid within 60 days of the expiry of your warrant of committal, unless, Ms.

Hatcher, you are asking for additional time? [ 87 ] MS. HATCHER: I do not think so, Your Honour. That is fine. [ 88 ] THE COURT: That is my sentence. Mr. F., I wish you the best of luck. I want to thank both counsel for their very helpful submissions. [ 89 ] MR. GRABAVAC: Your Honour, just a couple of things. With respect to the DNA order, the obstruction counts are secondary designated offences, are you exercising your jurisdiction and not doing DNA orders on those ones? [ 90 ] THE COURT: Yes -- [ 91 ] MR. GRABAVAC: Okay.

[ 92 ] THE COURT: -- given that he has already -- I have ordered him on the primary one, it makes no sense to do it on the secondary. [ 93 ] MR. GRABAVAC: I have to go through some informations right now and stay some counts. So, with respect to Information 89213-C-5, the Crown will direct a stay of proceedings on Counts 1, 2, 4. That is it. On Information 89213-A-2, the Crown will direct a stay of proceedings on Count Number 2. On Information 89213-A-4, the Crown will direct a stay of proceedings on Count Number 2.

On Information 89213-A-6, the Crown will direct a stay of proceedings on Counts 2, 3, 5, 7, and 10. [ 94 ] Madam Clerk, I believe those are all the outstanding counts on all the outstanding informations. [ 95 ] THE CLERK: Yes, Your Honour, except for we still have the -- [ 96 ] MR. GRABAVAC: Estreatment -- [ 97 ] THE CLERK: -- estreatment file. [ 98 ] MR. GRABAVAC: -- and I think we are prepared to deal with the estreatment right now. It is going to be, I guess, a joint submission to the court on how we are going to deal with that. [ 99 ] THE COURT: Is that correct, Ms. Hatcher? [ 100 ] MS.

HATCHER: I am technically not counsel for Mr. and Mrs. F., but I do have instructions from counsel, Ms. Rose, who has had, I think, rather extensive discussions with Mr. Grabavac and I think there is an agreement, as per the order in your hand, that half will be forfeited and half will be returned to spare any estreatment proceedings and -- [ 101 ] THE COURT: All right. [ 102 ] MS. HATCHER: -- spare more court time on this matter. [ 103 ] THE COURT: Given that the order is by consent and I have been provided a draft order -- do you want me to sign the order now? [ 104 ] MR.

GRABAVAC: That is -- yes, that is prepared by the court registry -- [ 105 ] THE COURT: All right. [ 106 ] MR. GRABAVAC: -- and if you -- unless you need any details from us, I am content with [indiscernible] -- [ 107 ] THE COURT: No, I understand it. I will say this, it is a significant sum to be estreated, but it is certainly appropriate in the circumstances given what the nature of B.M.F.'s behaviour was in the face of the bail. [ 108 ] MS.

HATCHER: Yes, and I do understand, just for the record, that there is no indication by this agreement from the F.’s that they were aware or countenanced this behaviour. [ 109 ] THE COURT: I am not suggesting they were. All right. Thank you. [ 110 ] MR. GRABAVAC: Your Honour, just one more thing, the SOIRA order was for 20 years? [ 111 ] MS. HATCHER: Yes. [ 112 ] THE COURT: Yes. [ 113 ] MR. GRABAVAC: Thank you. [ 114 ] THE COURT: Madam Clerk, there is -- I have signed the estreatment order. [ 115 ] THE CLERK: Thank you, Your Honour. [ 116 ] MR.

GRABAVAC: Your Honour, I believe those are the matters that before the court at this time. Thank you. [ 117 ] THE COURT: All right, thank you. [ 118 ] THE CLERK: Your Honour, I just want to confirm when you were talking about the C file, did I just hear you say 2-C, because I have got 5-C. [ 119 ] THE COURT: At the very -- sorry. [ 120 ] THE CLERK: At the very beginning, the -- [ 121 ] THE COURT: Yes, it is -- my apologies, it is a 5-C Information. [ 122 ] THE CLERK: All right, thank you, Your Honour. [ 123 ] THE COURT: Thank you. (REASONS CONCLUDED)