R. v. D.B.S., 2021 BCPC 84

Citation: R. v. D.B.S. 2021 BCPC 84 Date: 20210325 File No: 89479-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.B.S. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.H. SILVERMAN Counsel for the Crown: K. Soles Counsel for the Defendant: D. Schultz Place of Hearing: Abbotsford , B.C. Date of Hearing: March 18, 2021 Date of Judgment: March 25, 2021 [ 1 ] THE COURT: These are my reasons for sentence in the matter of Regina v. D.B.S., Information 89479-1.

[ 2 ] Sometime in 2018, L.H. disclosed to her grandmother that she had been sexually assaulted by her step-grandfather, D.S., during a camping trip in the summer of 2016. The incidents occurred nearly every night for a month while L.H., then only 11 years old, shared a camper with two of her siblings and Mr. S. [ 3 ] A charge of touching for sexual purpose was sworn on January the 31, 2019, and Mr. S. made his first appearance on the matter on March 14, 2019. [ 4 ] On October the 16, 2020, he entered a guilty plea to the charge.

The matter was adjourned for the preparation of reports and is now before me for sentencing. [ 5 ] The Crown seeks a sentence of four to six months jail and a two-year probation order. In addition, Crown asks for a 10-year SOIRA order, a 10-year order under s. 161, and a DNA order. While the Crown did not address a firearms prohibition, I note that s. 110 of the Criminal Code provides the court with the discretion to do so. [ 6 ] On behalf of Mr. S., defence counsel submits that a sentence of three months to be served intermittently is a fit and proper sentence in the circumstances.

In addition, counsel submits that a three-year probationary term would then adequately address the principles of sentencing. [ 7 ] Neither counsel has relied on any jurisprudence for their respective positions. Circumstances of the Offence [ 8 ] On August 30, 2018, L.H.'s grandmother reported to police that her granddaughter had disclosed to her that she had been sexually assaulted by D.S. two years earlier.

She told the police that the incidents occurred for about a month during the summer of 2016, sometime between June and September when L.H., her two siblings, her mother and her mother's boyfriend, had camped with the complainant's step-grandfather, Mr. S., at [omitted for publication], British Columbia. [ 9 ] L.H. was then interviewed by the police. In her statement, she disclosed that in the evenings she and her siblings would sleep inside a camper with Mr. S. while her mother and her boyfriend would sleep outside in a tent nearby.

L.H. stated that D.S. would touch her breasts and the outside of her vagina most of the nights over the course of the month she stayed with him inside his camper. [ 10 ] L.H. provided details of the incidents which occurred primarily in the night when everyone else had gone to sleep. She indicated the incidents sometimes began when she was sleeping and sometimes when she was awake. She said that Mr. S. would fondle the outside of her vagina, as well as her breasts. [ 11 ] L.H. initially felt too uncomfortable talking about what had happened.

Eventually, she told a friend and later her step- grandmother and then her aunt, S.P., who is now her guardian. L.H. was 11 years old at the time of the conduct. Circumstances of the Offender [ 12 ] For this hearing, a pre-sentence report as well as a psychological assessment were prepared. I have carefully reviewed their contents and will refer to them where indicated. [ 13 ] D.S. is 67 years old. He is single and lives alone in a rental accommodation provided by a friend. His source of income is his Old Age Pension and Guaranteed Income Supplement.

He has no savings and is in debt by about $20,000. [ 14 ] His background is not especially remarkable. The pre-sentence report indicates he had a positive childhood and enjoyed the love and care of both of his parents. He did not finish high school but worked steadily until retirement. [ 15 ] He reports a history of alcohol and drug abuse in his twenties but now seldom drinks. He indicates he was able to stop drug use altogether many years ago. There is no evidence before me that any of the offending behaviour occurred while Mr. S. was affected in any way by any substances. [ 16 ] Although Mr.

S. has a criminal record I note, for the most part, it is dated and certainly unrelated. [ 17 ] Counsel for Mr. S. spent considerable time in submissions emphasizing his client's poor health. The pre-sentence report indicates that Mr. S. has experienced seven strokes in the last three years. He has had two heart attacks, one in 2016 and another in 2018. He has undergone a quadruple bypass. He takes medication for his eyes, heart, diabetes, heart disease and COPD. [ 18 ] This sentencing hearing is particularly problematic in that Mr. S. claims no actual memory of his offending.

He appears to have pled guilty to the offence because he accepts that the victim, L.H., is "not known as a liar" and so assumes that what she reported happened (see pre-sentence report page 5). I note that I specifically inquired of defence counsel at the time Crown counsel read in the circumstances of the offences whether they were acknowledged by Mr. S. He indicated they were. [ 19 ] What is also troubling is that neither from the reports nor through submissions of counsel is there any expression of remorse by Mr. S., or an awareness by him of the harm he has done to L.H.

Indeed, the psychologist noted that when Mr. S. was interviewed by police he deflected blame, saying L.H.'s mother's boyfriend was actually responsible for the incidents and that the allegations were being made against him to get him evicted from L.H.'s grandmother's home. [ 20 ] In interviews with the psychologist, Mr. S.'s avoidant/deflective approach to these allegations continued. The writer states: Mr. S. engaged in extreme minimization and denial of sexual violence.

Though he professes to have no recollection of the offences due to his alcohol intoxication and history of strokes, he has acknowledged that it was possible he engaged in the behaviour. Conversely, he has also suggested perhaps he was being unjustly accused.

[ 21 ] The writer of the report concludes that due to Mr. S.'s extreme minimization, lack of empathy and insight, his risk for future sexual violence is assessed as being moderate. In part, as I understand it, the assessment is due to his relatively poor health and the fact that he is not currently in a relationship and, therefore, would not have the opportunity to offend against children. Victim Impact [ 22 ] The impact of D.S.'s offending on L.H. and her family has been significant. L.H. describes that she is constantly anxious and paranoid. She went from loving school to hating her teachers.

She is mistrustful of what others think of her and is terrified about them having what she calls weird thoughts about her. L.H. is ashamed of her body. She purposely wears baggy, male clothes so that she does not look "girly". She has developed an eating disorder, suffers from insomnia and when she does sleep, suffers from nightmares. As a result, her aunt, who is her guardian, had to put a bed in her room in order for L.H. to feel safe and get some sleep. [ 23 ] L.H. has taken to cutting her legs. The scarring is so severe she cannot enjoy her usual summer activities like going camping and swimming.

Fortunately, she has been able to attend a counsellor. This, however, has imposed a financial strain on her aunt. L.H.'s family has experienced a further financial consequence as they had to move in order to get away from the offender. Yet, they are still worried for their safety since they know Mr. S. is aware of their routines. L.H., in particular, is terrified of the prospect of ever running into him. L.H.'s aunt sadly observes, “It is so hard to witness an incredible young girl have the soul taken out of her.” The Law [ 24 ] The matter before me was prosecuted by

summary conviction procedure. As such, I note that there is a maximum term of imprisonment of two years less a day and a minimum term of imprisonment of 90 days. [ 25 ]

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

a) denunciation; (

b) deterrence; (

c) protection of the public; (

d) rehabilitation of the offender; (

e) reparation to victims; and (

f) promotion of a sense of responsibility in the offender. [ 26 ]

Section 718.2 of the Criminal Code codifies the proportionality principle which requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. It includes two components: (

a) the harm or likely harm to the victim; and (

b) the harm or likely harm to society and its values. [ 27 ] More specifically, s. 718.2 (a)(iii.1) requires a sentencing judge to take into consideration the impact of the offence on the victim. [ 28 ]

Section 718.2(

b) codifies the parity principle which holds a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. [ 29 ]

Section 718.2(

d) and s. 718.2(

e) codify the restraint principle which holds an offender should not be deprived of liberty if less restrictive principles may be appropriate and all available sanctions other than imprisonment are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of Aboriginal offenders. [ 30 ]

Section 718.01 of the Code directs the court to give primary consideration to deterrence and denunciation when sentencing for any offence involving the abuse of a person under the age of 18. [ 31 ] Other important sentencing considerations are set out elsewhere in s. 718.2 which states a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 32 ] The following have been codified as aggravating factors: (

a) in s. 718.2(a)(ii.1) the young age of the victim; (

b) s. 718.2(a)(iii) that the offender was in a position of trust or authority in relation to the victim; and (

c) s. 718.2(a)(iii.1) the offence had a significant impact on the victim. [ 33 ] Of particular importance in this sentencing hearing is the Supreme Court of Canada's recent decision in R. v. Friesen , 2020 SCC 9 . I am also indebted to my colleagues Blake PCJ in his decision of R. v. R.D.Z. , 2020 BCPC 175 and McKimm PCJ in R. v.

G.T.A. , 2021 BCPC 51 for their thorough analyses of Friesen . [ 34 ] In R.D.Z. , which bears similar features as the matter before me, Blake PCJ writes at paragraph 14: [14] Friesen is important to the judicial analysis not because it offers a particularly new perspective, but in large part because it explains in so much more detail the insidious ways in which the sexual abuse of children affects and undermines our society.

Friesen examines at length the diverse ways in which the victims themselves can be affected, sometimes permanently, and it also explores how families are torn apart and how community harmony itself is undermined: See in particular paras. 50 to 73. [15] The Friesen decision is also of fundamental importance in that it sounds a clarion call to the courts across the country to respond to the serious problem of child abuse by imposing heavier sentences than those which have been imposed in the past. The Supreme Court judgment is perhaps unusual in that respect, and it is certainly pointed.

The opening paragraph of the judgment sends the essential message: Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to this profound wrongfulness and harmfulness of sexual offences against children. Analysis

[ 35 ] I find little in mitigation in the matter before me. While Mr. S. pled guilty, I find any usual mitigating effect that that may have is attenuated by the way in which he acknowledges his guilt, and the absence of any expression of remorse or recognition of the harm he has done. [ 36 ] I know that I must not treat these latter features as aggravating, and I am not. What I do find, almost stunningly, is that remorse here is completely absent. [ 37 ] I note, too, that the guilty plea came very late in the day. In fact, the matter was originally set for trial in March 2020.

Court closures due to the pandemic resulted in the trial being adjourned. It was then, only after pre-trial conference procedures was a guilty plea finally entered on October 16, 2020. This sentence is being imposed more than two years since Mr. S. first appeared on the matter and nearly five years since the offence itself occurred. [ 38 ] Counsel on behalf of Mr. S. submits that this is an exceptional case due to his client's health problems and, as such, warrants a sentence at the minimum legally available to him. With respect, I disagree. There is no evidence before me that any of Mr.

S.'s health concerns are such that they cannot be addressed by BC Corrections. Even if I had such evidence before me, I find that the aggravating features of this offence call out for a significant jail sentence. [ 39 ] The offence involves many incidents, virtually daily, over the course of a month. The effect on the victim, as well as her family, has been devastating. It is especially aggravating that Mr. S.'s offending involved a flagrant breach of trust occurring in his trailer, mainly at night, when L.H.'s mother was away.

The Supreme Court of Canada in Friesen commented on the devastating and long-lasting effects of sexual offences on children committed by individuals in positions of trust. I quote from paragraph 60: Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust. The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in the communities and people they know.

They may be reluctant to join new communities, meet new people, make friends in school, or participate in school activities. [ 40 ] Mr. S. was found to be at moderate risk of future sexual violence. His lack of empathy and insight into his behaviour cry out for significant intervention. The author of the pre-sentence report notes that the sex offender program at Ford Mountain Correctional Centre requires that sentences be 12 to 18 months in length. [ 41 ] I have carefully considered the decisions of my brother Judge Blake in R.D.Z. and McKimm in G.T.A. , as well as the decision of Mr.

Justice Ball in the case of R. v. Roth , 2020 BCSC 2200 . [ 42 ] When I take into account all the factors that I am required to and, in particular, the overwhelming need to address denunciation and deterrence, I find that a sentence of 18-months jail, coupled with two years' probation is fit in all of the circumstances. I ask that the Warrant of Committal indicate Mr. S. is to serve this sentence at Ford Mountain Correctional Centre in order that he participate in sexual offender programming.

The jail sentence will be followed by probation of two years on the following conditions. [ 43 ] You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the officer of any change of employment or occupation. [ 44 ] You must report to a probation officer by telephone at Abbotsford Community Corrections within two business days after your release from custody unless you have obtained before your release from custody written permission from the probation officer to report elsewhere or within a different timeframe.

After that you must report as directed by your officer. [ 45 ] You will participate in and successfully complete any assessment, counselling program, or residential treatment program as directed by the probation officer. Such program may include sexual offending programming and you will comply with all of the rules and regulations of any such assessment, counselling, treatment or program. [ 46 ] You must reside at a residence approved in advance by the probation officer.

You must provide your probation officer with your address and phone number and you must not change your residence or your phone number without written permission from your probation officer. [ 47 ] You must not engage in activities, volunteer work, or employment that could bring you in contact with persons under the age of 18. [ 48 ] If at any time prior to the expiration of this order you are arrested, detained, or have served a sentence for another offence, you must report to the probation officer within two business days of your release from custody. [ 49 ] You must have no contact or communication directly or indirectly with -- and Mr.

Soles, I am going to include the full name, if you could state it, of L.H., please, and her aunt. [ 50 ] CNSL K. SOLES: Yes. Of course, Your Honour. It's L.H. and that's [omitted for publication], surname [omitted for publication]. [ 51 ] THE COURT: And her aunt? [ 52 ] CNSL K. SOLES: Aunt S.P. That's [omitted for publication], surname [omitted for publication]. [ 53 ] THE COURT: Thank you.

You must not go to or be within 100 metres of any residence, school, or workplace of L.H. and S.P. [ 54 ] You must not go to any public park, public swimming area, or community centre where persons under the age of 18 years are

present or can reasonably be expected to be present, or a daycare centre, schoolground, playground. [ 55 ] You must have no contact or communication directly or indirectly with, nor be alone in the presence of any person you know to be or who reasonably appears to be under the age of 18 years. [ 56 ] In addition to the probation order, I make an order pursuant to s. 161 of the Criminal Code on the following terms and it will be for a period of 10 years. You are prohibited from (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground, or community centre; (a.1) being within two kilometres of any dwelling house where the victim identified in the order ordinarily resides or any other place specified in the order and, I am sorry, I will just state that the victim L.H., so [omitted for publication]; and (

c) having any contact including communicating by any means with a person who is under the age of 16 years unless you do so under the supervision of a person whom the court considers appropriate. [ 57 ] Pursuant to s. 487.04(a)(i.1), as this is a primary designated offence, I order that you provide a sample of your DNA for entry into the National DNA Data Bank. [ 58 ] Finally, as this is an offence of violence against a child, pursuant to s. 110(2.1) (

b) of the Criminal Code of Canada , I order that you are prohibited from possessing firearms as that term is defined in the Criminal Code for life. [ 59 ] The victim fine surcharge is waived. [ 60 ] Go with the sheriff, Mr. S. [ 61 ] CNSL D. SCHULTZ: Just one question, Your Honour, regarding the two kilometre from a dwelling house, would there be a -- [ 62 ] THE COURT: I will make that 100 metres, Mr. Schultz. [ 63 ] CNSL D. SCHULTZ: Thank you. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 64 ] THE COURT: I neglected to include in the sentence the 10-year SOIRA order in my reasons. [ 65 ] CNSL K. SOLES: Of course. [ 66 ] THE COURT: All right. Thank you. (REASONS FOR SENTENCE CONCLUDED)