R. v. M.R.E., 2020 BCPC 224

Citation: R. v. M.R.E. 2020 BCPC 224 Date: 20201015 File No: 89060-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.R.E. PUBLICATION BAN Pursuant to s. 486(4.1) of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. SKILNICK Counsel for the Crown: D. Tsui Counsel for the Defendant: C. Terepocki

Place of Hearing: Abbotsford , B.C.

Dates of Hearing: January 6, 7, 8, 2020 Date of Sentence: October 15, 2020 [ 1 ] THE COURT: M.R.E. was convicted at trial back in January, judgment was pronounced in February, and he was convicted of all five counts on the Information that is before the court. [ 2 ] Today counsel concede, and quite fairly, that some of those counts are incidents where, although charged under two different sections of the Criminal Code , the Accused has been charged twice for the same offence and the Crown and defence agree that a stay of proceedings should be entered in respect to some of those counts, specifically, Count 1 and 3.

Earlier I did enter a conditional stay of proceedings with respect to Counts 1 and 3.

So I am now sentencing M.R.E. for three offences. [ 3 ] Count 2 charges him with an offence sometimes known as sexual touching with respect to a child who was identified as S.L.D. [ 4 ] He has been found guilty of a second count of the same offence with respect to a child that we have identified as S.M.D. [ 5 ] He has been convicted of a third count and that is an offence sometimes referred to as invitation to sexual touching and that is, again, in respect of the older child that we have identified as S.M.D. [ 6 ] I am not going to go over the facts of the offence.

Written reasons were delivered (reported at 2020 BCPC 19 ) explaining the reasons that I found M.R.E. guilty of these offences beyond a reasonable doubt. Suffice it to say that, despite a very thorough defence case advanced by the defence, presented by Mr. Terepocki, the children presented as very compelling and honest witnesses. Mr.

Terepocki was very careful to examine each of the possible alternatives as to why their evidence may be unreliable and in each case I found that, for the reasons given, I found their evidence to be reliable and, in fact, reliable beyond a reasonable doubt which is, of course, the test for guilt in a criminal offence. [ 7 ] Now, today, we are at the point where M.R.E. is to be sentenced for these offences that he has committed. [ 8 ] I am required to go over the law with respect to what I have to take into account when I sentence somebody for a crime of this nature.

The first thing I want to say though is that sentencing an offence like this on a child or, in this case, two children who have been victimized by this type offence, is very unique among all other criminal offences because there is some wrongs that can be fixed, some wrongs that can be righted. Somebody steals something from somebody, they pay the money back and amends are made. This type of an offence, on children of this age and, in fact, on anyone, is an offence for which it is impossible to make amends.

There are other considerations such as the protection of young and vulnerable children who ought to grow up expecting that their parents and the people in the place of their parents are going to be there to protect them, not harm them.

In this case, what is especially troubling is that these children looked to M.R.E. as their mother's partner, going to a home where they ought to have felt safe, they ought to have felt protected and instead the opposite happened. [ 9 ] The Criminal Code says that in sentencing someone I am required to take into account a number considerations: to denounce unlawful conduct and the harm that is done to victims and to the community when something like this happens; to deter this offender and other like-minded people from committing these kind of offences; to separate offenders from society, where necessary; also to assist in rehabilitating offenders; and to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in people who offend. [ 10 ] The Criminal Code gives special direction for offences against children and the Code specifically says s. 718.01: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 11 ] The Code goes on to say that a fundamental principle is that sentencing must be proportionate to the gravity of the offence and the degree of responsibility of an offender.

Of course, in an offence of this nature, it is difficult to think of circumstances more grave than these types of offences being committed against defenceless children under circumstances where they ought to have felt protected. [ 12 ] There are a number of other sentencing conditions that I am required to take into account, including the principles that sentences must be increased or reduced to take into account relevant aggravating or mitigating circumstances, both relating to the offence and to the offender. [ 13 ] I am to take into account as an aggravating circumstance that here there is evidence that the offender abused a position of trust, that the offence was committed against a young person under the age of 18, that the offence had a significant impact on the victim of the offence considering that person's age and their other personal circumstances. [ 14 ] I am also to take into account that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victim or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders who, regrettably, in this country have been over-represented in our prison system. [ 15 ] It is against that background that I have to craft an appropriate sentence for this offender, M.R.E., in these circumstances. [ 16 ] Crown and defence have provided me with further guidance from the courts in this country, most recently, in fact this very year, the Supreme Court of Canada has spoken and made it loud and clear to judges that denunciation and deterrence for this type of an offence must be stressed. [ 17 ] This is a case in which the older child, S.M.D., between the ages of eight and 10, was repeatedly victimized and on one weekend in September of 2018, her younger sister, S.L.D., was also victimized in a way that no child should ever have to experience.

[ 18 ] The victim impact statement that was read by the children's grandmother today was, I think, very telling and a very sobering understanding of what these children have had to go through as a result of being victimized in this fashion. It is particularly disheartening to read that young children express to the adults in their life that they are so sad and so tortured that they want to die because of something that was done to them, something they had no control over. [ 19 ] As I said earlier, this is a type of offence that there is no possible way of making amends for. This is a bell that cannot be unrung.

These are consequences that not only continue to traumatize young children but will forever affect the way that they grow up, the way that they conduct their lives, the choices they make both as children and as adults. It is especially sad when young children have their childhood robbed from them in a way that has happened to these children. [ 20 ] The law says that I am to take into account the mitigating and aggravating circumstances. [ 21 ] M.R.E. comes before the court a relatively young man of 34 years of age. He is in a relationship.

Has a young family and, of course, in an offence like this, any punishment imposed on M.R.E. has the additional impact of affecting his young family as well. [ 22 ] He comes before the court as a person with an Indigenous background and as both counsel have accurately stated the state of the law, that factor becomes less and less of a differential as the gravity of the offence increases. [ 23 ] He comes before the court as someone with a traumatic background, with health issues that have limited his employment prospects.

He comes before the court as someone who has undergone his own struggles, I am told, with methamphetamine use, as well as a past history of anxiety. [ 24 ] He does have a previous criminal record. He has no previous convictions for sexual offences. His crimes are primarily crimes of dishonesty. I note the record is set out in the Pre-Sentence Report. [ 25 ] As I say, I am required to take into account the aggravating and mitigating circumstances and especially in proportion to the degree of harm that results from an offence of this nature.

It is very difficult to see much that is mitigating. [ 26 ] In this case, a guilty plea was not entered and the children were required to attend court and testify.

As counsel have said, that is not an aggravating circumstance, it is just simply that I cannot give M.R.E. the credit that I would to someone else who had come before the court, accepted their wrong at an early stage so that the children and their family could have been spared the experience of having to testify. [ 27 ] It does bear mentioning, I think though, that when the children were testifying at trial, they were cross-examined in a manner that was both skillful but also respectful and careful not to add further indignity to what the children had already experienced. [ 28 ] As Crown and defence have mentioned, there are a number of aggravating circumstances.

The fact that M.R.E. was in a position of trust. The fact that the victims of these offences were young, they were vulnerable. They were once happy children who looked forward to spending time with their mother, only to have the experiences rob them of that pleasure of spending time in a loving home. There is the aggravating factor of the frequency, particularly with respect to the older child. There is the aggravating factor of the severity of the acts.

That they took place in a location where both children ought to have otherwise expected to be safe. [ 29 ] The psychological manipulation of the children is also a factor. That they were made promises in exchange for their silence.

That there was grooming and other humiliating conduct. [ 30 ] It is troubling that there were a number of missed appointments for the pre-sentence report that might have otherwise offered some insight and some explanation and put this court and more importantly M.R.E. himself in a position to assess and understand the risk to the community, to other children. [ 31 ] It is difficult that in this case, as well, what is lacking is that there never seems to be any moment when a lightbulb came on and M.R.E. appreciated that what he was doing was wrong, was horribly wrong and that he was harming children in such a horrible manner. [ 32 ] It is against all that background now that I pass sentence on M.R.E. [ 33 ] The Crown seeks a sentence of five years for the offences with respect to S.M.D. and three years consecutive with respect to the offences committed against her younger sister, but concedes that some application of a totality principle should be applied, from which I take it that a sentence of something under eight years should be imposed in this case. [ 34 ] The defence seeks a sentence of something in a lower range but concedes, quite fairly, that for offences of this nature, under the circumstances that I have described, a penitentiary sentence is called for and invites a sentence in the range of four years. [ 35 ] I am guided by the statements made by the Supreme Court in the recent decision of R. v.

Friesen, 2020 SCC 9 , and the direction that they have given to judges of this and other courts across the country that for these types of offences against vulnerable children, denunciation and deterrence are to be stressed.

That because these are offences that have such long-lasting and tremendous harm, and because of the fact that there are no proper amends that can be made to undo that harm, as the Supreme Court said, a six-year sentence even in the case of a person with a guilty plea and no record may be otherwise seen as lenient. [ 36 ] M.R.E., if you would stand, please. [ 37 ] I am sentencing you to seven years with respect to Counts 4 and 5, your sentence will be seven years. [ 38 ] With respect to Count 2, your sentence will be three years concurrent, all sentences concurrent, one with the other.

On an application of the totality principle there will be a seven year sentence. [ 39 ] In addition to that, I am going to make the following orders.

[ 40 ] Pursuant to s. 490.012 of the Criminal Code , an order will be made under the provisions of the Criminal Code pertaining to the Sexual Offender Information Registry Act . That will be a lifetime order. [ 41 ] Pursuant to s. 487.051 of the Criminal Code , a sample of your DNA will be taken for inclusion into the National DNA Data Bank. That will be a primary designated order. It has to be taken by a peace officer, including a corrections officer or other person authorized to take that sample under the Criminal Code .

That can be taken upon your classification. [ 42 ] I am going to make an order pursuant to s. 109(2) of the Criminal Code prohibiting you from possessing those weapons listed in subsection (

a) of that

section for 10 years, and prohibiting you from possessing the weapons listed in

section (

b) of that

section for your lifetime. [ 43 ] I am going to make an order pursuant to s. 743.21 of the Criminal Code that you are to have no contact with S.M.D., S.L.D., B.R. or S.R. while you are serving your custodial sentence. [ 44 ] Lastly, I am going to make an order pursuant to s. 161 of the Criminal Code prohibiting you from attending any public park or swimming area where persons under the age of 16 are present, or can reasonably be expected to be present, or any daycare centre, schoolground, playground, or community centre; prohibiting you from seeking, obtaining, or continuing any employment whether or not the employment is remunerated, or becoming a volunteer or being a volunteer, in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and lastly, having any contact, including communication by any means, with a person who is under the age of 16 years, other than your own children, unless you do so under the supervision of a person found by this court to be appropriate. [ 45 ] MS.

TSUI: Your Honour, I failed to specify a duration on that. The 161 needs a duration. [ 46 ] THE COURT: I was just going to ask you about that. [ 47 ] MS. TSUI: Crown is seeking a five-year order. [ 48 ] THE COURT: Mr. Terepocki, any submissions on that? [ 49 ] MR. TEREPOCKI: No, Your Honour. [ 50 ] THE COURT: That will be in force for a period of five years. I believe that order commences following your release from custody. [ 51 ] Lastly, because you will not have the ability to earn an income over the next number of years, I will make an order waiving payment of the victim fine surcharge. (REASONS FOR SENTENCE)