R. v. B.V.T. Date:, 2016 BCPC 95

Citation: R. v. B.V.T. Date: 20160418 2016 BCPC 0095 File No: 8950-1, 8832-C2, 8896-KA2 Registry: Burns Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.V.T. REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL BAN ON PUBLICATION s. 486.4(1) CCC Counsel for the Crown: N. Purewal Counsel for the Defendant: K. Strimbold Place of Hearing: Burns Lake , B.C. Dates of Hearing: February 9 and March 7, 2016

Date of Judgment: April 18, 2016 INTRODUCTION [ 1 ] B.V.T., the Defendant, is to be sentenced today on three Informations from the Burns Lake Registry namely: a) 8950-1: sexual assault against A.L. on December 26, 2014 contrary to s. 271 of the Criminal Code on which Mr. T. was found guilty after a trial; b) 8832-C2: the lesser included offence of assault against C.B. on November 9, 2014 contrary to s. 266 of the Criminal Code to which Mr.

T. pleaded guilty; and c) 8896-KA-2: two of breaches of an undertaking by communicating with and going to the residence of S.C. on September 20, 2014 contrary to s. 145 (5.1) of the Criminal Code to which Mr.

T. pleaded guilty. [ 2 ] The Crown seeks the following sentences for each of the three Informations: a) 8950: incarceration in a federal penitentiary for between three and five years; b) 8832: incarceration in a federal penitentiary for 4 to 6 months consecutive to Information 8950; and c) 8896: incarceration in a federal penitentiary for 4 to 6 months concurrent between each of the two Counts but consecutive to Informations 8950 and 8832. [ 3 ] In addition, the Crown seeks the following ancillary orders:

a) Mr. T. register for and comply with the Sex Offender Information Registration Act (SOIRA) for life pursuant to s. 490.012 (1) and 490.013 (2.1) of the Criminal Code ;

b) Mr. T. submit to the taking of a DNA sample pursuant to s. 487.051 (4) of the Criminal Code as the conviction on Information 8950 is a primary designated DNA offence;

c) Mr. T. be prohibited from possessing firearms for life pursuant to s. 109 of the Criminal Code ; and

d) Mr. T. be prohibited from communicating directly or indirectly with A.L. and C.B. during his period of incarceration pursuant to s. 743.3 (1) of the Criminal Code . [ 4 ] The Crown also sought an order that Mr. T.’s credit for pre-sentence custody be fixed at a 1:1 basis because he was detained after a bail hearing on Informations 8950 and 8932 primarily as a result of his past criminal record as described in s. 515 (9. 1.) of the Criminal Code and pursuant to s. 719 (3) and (3.1) of the Criminal Code. [ 5 ] However, in the very recent decision of the Supreme Court of Canada in R. v.

Safarzadeh-Markhali 2016 SCC 14 provisions of s. 719(3.1) were declared unconstitutional and of no force and effect. As such Mr. T. will receive enhanced credit. [ 6 ] Mr. T. has been in custody since January 26, 2015, a total of 449 days.

With enhanced credit of 1.5 to 1 he has 674 days, or slightly over 22 months, credit. [ 7 ] Defence counsel seeks a cumulative sentence of time served with a period of nine months being attributed to Information number 8950, followed by a Probation Order of 18 months. [ 8 ] Defence counsel made no submissions with regard to the ancillary orders being sought by the Crown or with regard to the amount of credit Mr. T. should be given for his presentence custody. MR. T.’S CIRCUMSTANCES [ 9 ] Mr. T.’s personal circumstances were described in the Pre-Sentence Report and in the submissions of Defence counsel.

Some of the information Mr. T. provided the Pre-Sentence Report author about his personal history was inconsistent among the various interviews they had and inconsistent with what Mr. T. disclosed to previous Pre-Sentence Report authors. [ 10 ] Mr. T. is the youngest of nine siblings. His upbringing was very dysfunctional with his parents’ alcohol abuse featuring prominently in the violent way they treated each other and him. He contends that he was the only sibling targeted by his parents and that eventually his other siblings also abused him.

For a period of time, when he was quite young, he was removed from the family and lived with relatives. [ 11 ] Mr. T. described his upbringing in a home where excessive use of alcohol by his parents and guests was a frequent occurrence although in various reports he describes the drinking as daily, weekly or occasionally. Consistent in Mr. T.’s statements were that his parents and others drank to the point of extreme intoxication. [ 12 ] Mr. T. began his alcohol abuse as a teen. He and his friends would frequently drink to the point where he would black out.

His drinking to the point of blacking out has persisted throughout his life. He has been to treatment once in the 1990’s but his sobriety did not last. He also is a regular user of marijuana. He reports his abuse of substances to be related to the abuse he endured as a youth and his attempt to escape those memories.

[ 13 ] He has been meeting with a drug and alcohol counsellor while in custody on remand status. He now believes that he would like to obtain treatment at a full-time attendance program upon his release. The Pre-Sentence Report author notes that due to the nature of Mr. T.'s offending behaviour he would not likely be accepted at most of the First Nations based treatment facilities in the province. [ 14 ] Mr. T. stated that his father passed away in 1979 and that after that his mother’s alcohol consumption increased even more and continued until her death from alcohol related illness in 2006. Mr.

T. is close to his siblings, and particularly his sister A., most of who live in Burns Lake. He has described them as either being weekend drinkers or living sober lives. [ 15 ] Mr. T. has one adult daughter from a previous relationship. He does not see her regularly but reports they remain close. That daughter has children of her own. [ 16 ] Upon his release Mr. T. wishes to reside with his sister A. His brother, F. and A.'s son also reside there. There is no alcohol permitted in that residence and A. has been sober for over ten years. [ 17 ] Mr.

T. originally left school in Grade 9 as a result of excessive alcohol consumption. Later he tried re-attending high school before again leaving his studies due to excessive alcohol consumption. While he has been incarcerated and awaiting sentencing he has been attending upgrading. [ 18 ] Mr. T. also recently completed a program in Burns Lake to obtain various trade and employment certificates and tickets to enhance his employability.

During his attendance in that program the facilitator noted that he was fully engaged in the training and attended daily and was not once intoxicated or showing signs of excessive consumption. [ 19 ] Mr. T. has a varied work history in the forestry, fishery and construction industries, as well as seasonal work selling firewood. [ 20 ] Mr. T. did not receive any formal education regarding human sexuality while he was growing up. He states that he was a victim of sexual abuse at the hand of an older female who stood in a position of trust when he was a child between age of seven and 13.

Although he claims this is the only person to have sexually interfered with him he stated in an earlier Pre-Sentence Report that he was also sexually abused by both of his parents. [ 21 ] Mr. T. was involved in four long-term romantic relationships in his adult life, the longest being 11 years. [ 22 ] Despite his several past and present convictions for sexual assault, Mr. T. indicated to the Pre-Sentence Report author that he did not view himself as somebody with sexually deviant thoughts or behaviours. [ 23 ] Mr.

T. states that he feels that he suffers from severe depression as a result of the physical, sexual, and emotional abuses he suffered as a youth and that he feels like there is a child inside him whom was never allowed to grow and he needs to release that child. He also explained to the Pre-Sentence Report author that he feels a great deal of shame and anger for being a victim of sexual assaults many years ago and that he could greatly benefit from counselling to address and to deal with the abuses he suffered in his life. [ 24 ] Mr. T. has reported that he has made two separate and serious acts of self-harm.

The first was approximately two decades ago when he attempted an overdose of prescription medication resulting in a brief hospital stay. The second was approximately ten years ago when he attempted to hang himself but was revived. OFFENCE CIRCUMSTANCES [ 25 ] The circumstances of the offences to which Mr. T. has pleaded guilty and is to be sentenced today are set out below. 8950 [ 26 ] On December 26, 2014, Ms. L., who was then 20, and her two-year-old son were visiting from Vanderhoof with extended family in Burns Lake. They engaged in a series of social activities with family members which included Mr. T.

Eventually a large group went to a party at a family member’s residence where Ms. L. was staying where everyone, including Ms. L. and Mr. T., were socializing and drinking alcohol. [ 27 ] In the early morning hours Ms. L. went into her bedroom to put her son to sleep and fell asleep herself. Sometime later she was awakened by her son calling out to her and found Mr. T. in the bedroom with one hand inside her pants and one hand on her exposed breasts because her top had been pulled down and her bra unclasped. Ms. L. pushed Mr. T. away and out the door of the bedroom causing him to fall to the floor.

Those actions were observed by two other witnesses at the party. [ 28 ] Mr. T. denied that he had been in Ms. L.’s bedroom which made her angry. She struck Mr. T. and pushed him away causing his glasses to fall off his face. He left the residence soon after. [ 29 ] Mr. T. turned himself into the RCMP on January 28, 2015. 8932 [ 30 ] On November 9, 2014, Mr. T. and Ms. B. attended the same social function at an extended family member’s residence. They had met each other on a few occasions before. Everyone at the residence was socializing and drinking alcohol throughout the evening and night.

At some point in the evening Ms. B. passed out on a couch. Mr. T. started shaking her and tried to throw her out of the residence but desisted in those actions after a period of time. In the early morning Ms. B. awoke to find Mr. T. hovering over her with his hand on her leg. She jumped up and ran out of the residence. The RCMP were called, but Mr. T. was not arrested until he turned himself in to the RCMP in January 2015. 8896

[ 31 ] On September 20, 2014, Mr. T. was subject to an Undertaking which included provisions that he was to abstain from communicating with or going to the residence of an assault complainant. In the early morning Mr. T. went to the complainant’s residence in a rural area south of Burns Lake and banged on the door. The complainant called the RCMP who located and arrested Mr. T. He was released from custody later that day. VICTIM IMPACTS [ 32 ] Neither A.L. nor C.B. filed a formal victim impact statement. [ 33 ] Ms.

B. did advise the author of the Pre-Sentence Report that she has suffered for a long time from serious anxiety and trust issues and that those conditions were exacerbated by Mr. T.'s assault on her. She described her situation as somebody who has gone from feeling generally uneasy and uncomfortable in social settings to not putting herself in the situations anymore and spending a vast majority of her time in her home. This isolation has resulted in her well-being deteriorating to the point where she is now on prescription medications to deal with her anxiety and depression and she directly blames Mr.

T. for that. [ 34 ] Ms. L. provided information through the Crown on how Mr. T.'s attack on her has affected her. She now suffers from night terrors, requiring both counselling and antianxiety prescriptions. She has trouble sleeping and often does not feel safe. [ 35 ] After the sexual assault, some of Mr. T.'s family members attempted to pressure her not to pursue the matter because they said it would destroy their family. CRIMINAL HISTORY [ 36 ] Mr.

T.’s criminal history dates back to 1982 and, including the matters being sentenced on today, total 71 criminal convictions including: a) 5 convictions for sexual assault; b) 2 convictions for assault causing bodily harm or assault with a weapon; c) 12 convictions for assault; d) 4 convictions for break and enter, 1 conviction for being unlawfully in the dwelling house, 1 conviction for forcible entry and 1 conviction for theft; e) 1 conviction for criminal harassment and 1 conviction for uttering threats; f) 1 conviction for possession of a weapon dangerous to the public peace; g) 5 convictions for mischief and 1 conviction for causing a disturbance; h) 1 conviction for obstructing a peace officer; i) 27 convictions for breach of bail; j) 5 convictions for breach of probation; k) 3 convictions for failing to attend court; and l) 2 convictions for escaping lawful custody. [ 37 ] The Crown asked the Court to take particular note of Mr.

T.’s previous convictions for sexual assault and criminal harassment and set out the circumstances of those offence and the sentences Mr. T. received which are detailed in chronological order of the date of the offence below. 8523 [ 38 ] In 1999, Mr. T. was living with a woman who had a 14-year-old daughter, the complainant. The complainant was sexually assaulted by Mr. T. who placed his hands down her pants while she was sleeping and when she woke up and confronted him, he left the room. She obtained a knife and put it to his neck and forced him to tell her mother about the events.

The mother convinced the complainant not to report the matter to the RCMP at the time. It did not come to light until 2011. On August 8, 2011, Mr. T. pleaded guilty to the charge of sexual assault and was sentenced to one year in jail. 6528 [ 39 ] On January 13, 2002, the RCMP were called to a domestic dispute. The complainant and Mr. T. were at a party together when Mr. T. became jealous and assaulted the complainant by grabbing her hair and choking her. The complainant got away from the initial assault however Mr. T. followed her and threatened to kill her and assaulted her further. On January 31, 2002, Mr.

T. pleaded guilty to assault and several breaches of Court Orders. He received three months in jail for the assault and various one month sentences for the breaches. During the sentencing the Court recommended that Mr. T. obtain alcohol abuse treatment while in custody. 6703-C2 [ 40 ] On August 24, 2002, the complainant called Mr. T.'s mother's house and accused him of infidelity. Subsequently, Mr. T. assaulted the complainant by kneeing her in the chest. On February 27, 2003, Mr. T. was sentenced to six months in jail for that assault

along with various shorter sentences for two other assaults and 11 breaches of various Court Orders. [ 41 ] In paragraph 4 of the Reasons for Sentence the Court said: [4] The issue of rehabilitation should not be addressed through a probation order, as it often is, because that may actually be problematic for Mr. T., and the court should not be involved in increasing problems for people. [ 42 ] The Court also noted that Mr. T. had contact with two counsellors and was considering residential treatment. 6922 - K1 [ 43 ] On November 29, 2003, Mr.

T. made 12 threatening phone calls to the complainant and, in one of those calls, he threatened to kill her. On October 12, 2004, he was sentenced to six months in jail for the threats along with various shorter sentences for three breaches of Court Orders and the break and enter. The Court noted it to be an aggravating factor that the offences arose from a spousal relationship. 8930 [ 44 ] On December 14, 2003, the RCMP were called by the complainant because Mr. T. had broken a window on her residence and entered her residence. He left the residence by the time the RCMP arrived. After the RCMP departed, Mr.

T. returned with an axe in hand and stood in her yard for a period of time. On October 12, 2004, he was sentenced to 14 days incarceration. 7446-C2 [ 45 ] On May 7, 2006, Mr. T. entered his brother's residence without permission and sexually assaulted two 13 year old complainants. In each case Mr. T. went to the bedroom where the complainants were sleeping and touched them in a sexual manner. In each case the complainant pushed Mr. T. away and ran out of the room. On July 12, 2006, Mr.

T. was sentenced to two years’ in prison, concurrent on each of the counts of sexual assault and the break and enter. [ 46 ] During the sentencing the Court noted that a federal sentence was appropriate, in part, at the request of Mr. T. through his counsel, because he wanted to access rehabilitation programming only offered in a penitentiary. 8196 [ 47 ] On March 21, 2009, the RCMP were called by the complainant in the early morning hours because Mr. T. had come to the complainant's residence, banged on the door, kicked in the door and then threatened the complainant. By the time the police arrived Mr.

T. had left, but after the RCMP departed, Mr. T. returned with a knife and threatened to damage the complainant's property. On July 28, 2010, Mr. T. was sentenced to 168 days in jail for criminal harassment, possession of a weapon for dangerous purpose and five breaches of Court Orders. [ 48 ] In imposing the jointly submitted sentence the Court noted Mr. T.’s goal was to attend a long term drug and alcohol treatment program. 21676-C2 Smithers [ 49 ] On January 20, 2010, the complainant and Mr. T. were at her residence in Fort Babine. The complainant had gone to bed and Mr.

T. entered the bedroom while intoxicated, caressed the complainant and tried to kiss her. She told him to leave the room and he did but he returned a second time and this time he grabbed the complainant's breasts. The complainant told him to get out and Mr. T. left again but returned a third time and tried to roll the complainant on her back saying "let's do it". The complainant managed to get Mr. T. off her. Mr. T. asked her not to tell anyone. The complainant left the room. On October 20, 2010, Mr.

T. was sentenced to 18 months in jail on the charge of sexual assault and a breach of a Court Order. [ 50 ] During the Sentencing the Court said the following at paragraphs 5 and 7: [5]….At 44 years of age, I guess you are starting to realize that you are going to waste your life if you carry on like this.

Obviously your band still supports you, and your dignity and respect in your community must be important to you at this stage in your life. [7] So while I will agree with the joint submission, continuing criminal conduct like this in the future is just going to land you in jail for longer and longer periods of time, regardless of how serious the offence is, because of your nasty criminal record. PRE-SENTENCE REPORT ASSESSMENTS AND CONCLUSIONS [ 51 ] Mr.

T. advised the Pre-Sentence Report author that all of his 70+ convictions for various criminal offences were the result of alcohol abuse. [ 52 ] When asked about the sex offence convictions, Mr. T. directly blamed his alcohol abuse for his behaviour and refused to accept full responsibility. The Pre-Sentence Report author noted that over the past ten years, Mr. T. has been directed by the Court to attend drug and alcohol treatment centres with his consent, but that he has not actively participated in those programs. [ 53 ] Even though he has four previous convictions for sexual assault, Mr.

T. has never completed the Sex Offender Treatment Program during his periods of incarceration. He has never been placed on probation for his past sexual offences and, as such, has had no opportunity to take such programming in the community. [ 54 ] When Mr. T. was advised by the Pre-Sentence Report author that he would most likely be required by the Court to attend some form of forensic sex offender treatment program, Mr. T. responded that he would only attend if required to do so and not because he felt

he had any need to benefit from it. Mr. T. also stressed that prior to taking any such program he would first like to attend counselling for his past trauma and alcohol issues. [ 55 ] The Pre-Sentence Report author notes that there are numerous factors that heighten Mr. T.'s risk to reoffend including:

a) he was a witness to substance abuse and violence during his formative years;

b) he has numerous convictions for failing to abide by court orders;

c) he is unwilling to address the problems which led to his conviction history, particularly as it pertains to the sexual offences;

d) he does not believe that he has any problems with his sexual behaviours and deflects responsibility for them by placing the blame on factors such as his alcohol consumption. [ 56 ] The Pre-Sentence Report author noted that there are different interventions available to address Mr. T.'s criminal behaviour and risk to reoffend depending on the nature of the sentence Court imposes. [ 57 ] If Mr. T. is sentenced to a period of incarceration in a federal penitentiary, he would have available to him, sex offender programming at both high and moderate intensity levels.

The high intensity programming usually requires at least six months and involves between 420 and 480 hours of programming. Moderate intensity programming involves between 200 and 224 hours over four to five months. [ 58 ] Access to, and the level of programming, is prioritized based on the offender's previous history of violence, their risk rating and their release date. [ 59 ] If Mr. T. is sentenced to a period of incarceration in a provincial prison, he would receive 12 weeks of programming of approximately two hours per week for a total of 24 hours.

Given that such programming is offered on a revolving cycle of four times per year in order to ensure it was available to an offender, a sentence of approximately 12 months would be required. [ 60 ] If Mr. T. is sentenced to a community based sentenced either after a period of incarceration or on its own, a sex offender treatment program is made available periodically in various communities throughout the north. Such programs usually require daily attendance and last for approximately one week. At the present time there is no sex offender treatment program scheduled in the Smithers/ Burns Lake area.

ASSESSMENTS CONCERNING REOFFENDING [ 61 ] Utilizing four separate assessment tools for rating a sex offender’s risk to reoffend, the Pre-Sentence Report author noted that for each of those assessment tools Mr. T. rates at either a medium/high risk or high risk to reoffend sexually. [ 62 ] In applying the assessment tools the Pre-Sentence Report author was not utilizing any education, skills or experience like a psychiatrist or psychologist would in providing an expert opinion report.

Rather, the tools are utilized within Community Corrections to make decisions about the type of services a client may need and benefit from. [ 63 ] Subsequent to Mr. T. being found guilty on the most recent case of sexual assault, the Crown applied for an order to have him psychologically assessed as provided for by ss. 721(4) and 723(3) of the Criminal Code . [ 64 ] Mr. T. objected to such an assessment and the Court conducted a hearing on that issue. The Court ordered that Mr. T. would not be required to participate in such a process against his will. At the time of the hearing the Court noted that Mr.

T.'s refusal to participate in such a process would not forbid the Crown from gathering information about him from other sources for sentencing purposes. That collateral information may assist the Court in determining his suitability for release from custody or the programming he might be required to take.

THE LAW Criminal Code [ 65 ] The following sections of the Criminal Code have application to this sentencing proceeding: a) 145(5.1) Every person who, without lawful excuse, the proof of which lies on the person, fails to comply with any condition of an undertaking entered into pursuant to subs. 499(2) or 503(2.1) (

b) is guilty of an offence punishable on

summary conviction b) 266 Everyone who commits an assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding five years; c) 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; d) 490.012

(1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (

e) of the definition designated offence in subs. 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the

applicable period specified in s. 490.013. e) 490.013(2.1) An order made under subs. 490.012(1) applies for life if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (

e) of the definition designated offence in subs. 490.011(1). f) 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

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 and to the community. g) 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. h) 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, (

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

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. i) 743.21

(1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary. Case Law [ 66 ] The Crown provided the following cases to assist the Court:

a) R. v. Arcand 2010 ABCA 363 ;

b) R. v. G.M. 2015 BCCA 165 ;

c) R. v. Kasekeo 2009 SKCA 48 ;

d) R. v. Pouce Coupe 2014 BCCA 255 ;

e) R. v. Rosenthal 2014 YKTC 41 ;

f) R. v. R.R.M. 2009 BCCA 578 ;

g) R. v. Shalley 2005 MBCA 150 ;

h) HMTQ. v. T.P.C. 2000 BCSC 742 ;

i) R. v. Wells 2000 SCC 10 ; and

j) R. v. Williams 2011 BCCA 194 . [ 67 ] Defence counsel provided the following cases to assist the Court:

a) R. v. Ladue 2011 BCCA 101 ; and

b) R. v. White 2000 BCCA 516 . SUBMISSIONS Crown [ 68 ] The Crown's submissions can be summarized as follows:

a) as an untreated sex offender with multiple convictions, Mr. T. poses a high risk to reoffend and public safety requires him to be

separated from society for a lengthy period of time;

b) the sentencing principles of denunciation and deterrence have primacy when it comes to sentencing sexual offenders. Rehabilitation is of a lesser priority in these types of cases. Society must be committed to protecting the personal integrity of victimized individuals;

c) intoxication at the time of the offence is not a mitigating factor;

d) sexual assaults on sleeping victims is an aggravating factor because of the predatory nature of such attacks;

e) although Mr. T. is entitled to special sentencing considerations as described in Gladue and Ipeelee the offending against Aboriginal women must also be a consideration;

f) the programming offered in the federal penitentiary system affords a better opportunity for success in dealing with Mr. T.'s sex offending behaviour and alcohol abuse and assist in his rehabilitation.

g) Mr. T. has told the Court in the past that he wanted to attend a full-time attendance program but has never followed through,

h) although Mr. T. has done well in the variety of programs he has taken while incarcerated he has been unable or unwilling to continue in a prosocial manner once released. Defence [ 69 ] Defence counsel's submissions can be summarized as follows:

a) Mr. T. understands the danger that alcohol is to him and that he needs to remain sober. He has obtained some alcohol counselling while in jail and has made contact with counsellors at the Lake Babine Nation;

b) Mr. T. also needs trauma counselling to address the physical, sexual and emotional abuse he suffered as a child;

c) Mr. T. acknowledges issues surrounding his sexuality and his offending, and is prepared to take such counselling in Smithers when it is offered;

d) although denunciation and deterrence are important principles in such cases, they should not overshadow rehabilitation particularly when considering Mr. T.’s difficult upbringing and life as an Aboriginal person raised in an alcohol abusing environment resulting in his own lifelong struggle with alcohol abuse;

e) Mr. T. has never had treatment or other programs over the years and requires assistance that might take considerable time. That does not mean he needs to be incarcerated for that lengthy process;

f) it has been difficult for Mr. T. to admit that he needs help for both his alcohol abuse and sexual offending. Treatment and counselling would help with both of those issues and Mr. T. probably needs psychological or psychiatric treatment as well;

g) Mr. T.'s past sentences have not focused on rehabilitation. Rehabilitation is important both for Mr. T. and the community at large because if he is rehabilitated Mr. T. no longer poses a risk to the community;

h) Mr. T. has the support of his Aboriginal community and his family. He is industrious when he is sober and he wants to be able to assist other community members,

i) Mr. T. has never had the opportunity to address his issues through a Probation Order. A sentence that does not include a Probation Order will simply repeat an unsuccessful pattern and will not assist in Mr. T.’s rehabilitation. His rehabilitation will benefit not only Mr. T. but the community at large. Other Speakers [ 70 ] Mr. T.’s sister, A.T., told the Court that she wants him to reside with her, particularly since her parents have passed away. She resides in Burns Lake on the Burns Lake First Nation and said that Mr. T. had done well when he lived with her before.

She said that her health is not good and that Mr. T. helps her around the house. [ 71 ] Herbert William, a drug, alcohol and wellness worker with the Burns Lake First Nation noted that if Mr. T. resides with his sister, he will be living close to the drug and alcohol counsellor’s office. He advised the Court of the various programs that would be available to Mr. T., both through his office and through counsellors who come from outside the area. He described how he likes to set up programs for offenders in conjunction with the Court and lawyers in the community. He said that if Mr.

T. needed transportation to attend programming in Smithers that could be arranged. He also noted that he could arrange support for Mr. T. with the elders from the community and that if appropriate Mr. T. could perform a shame ceremony.

Other Submissions [ 72 ] Chief Wilf Adam of the Lake Babine Nation wrote a letter to the Court which states: I would like to support the release of B.V.T from incarceration and be a useful member to society. (sic) I have known B. all his life and know him to a hard worker. (sic) When he gets employment he completes his task but his eyesight needs to be looked at. (sic) I also recommend that he gets complete brain injury assessment done from past blows to his head. (sic) Our Nation's services in the health field will be able to help in any way possible. Thanks for your consideration in this matter. Mr. T.

[73] Mr. T. told the Court that he was sorry to the victims of his offences. He said that he has brought shame to himself, his family,and his community, and that he needs help with his alcohol addiction. He stated that he is turning 50 and it is not too late for him tochange. DISCUSSION Nature of the Offences [74] Although Mr. T. is being sentenced for three different types of offences there will be little examination or discussion about thebail breaches in these reasons. Although they are serious because they were committed against a vulnerable former spouse they did notresult in any further physical harm.

They stand as just the latest examples in the long line of Mr. T.’s disregard for the Court’s direction. [75] In light of the disparate submissions of the Crown and Defence counsel, the Court must provide detail and context for thesentences to be imposed for the sexual assault and the assault, given that they were committed in circumstances where the victims werein a vulnerable position.

Sentencing Principles [76] The sentencing factors described in s. 718 through 718.2 must be carefully considered and then applied in light of the uniquecircumstances of the offences, the offender including the offender’s personal and criminal history and the applicable case law. [77] The application of the purposes and principles of sentencing in sexual assault cases has been recently described by the Court ofAppeal in G.M. where the Court said at paragraphs 17 and 18: [17] In serious sexual assault cases, the paramount sentencing objectives of denunciation and deterrence; it is not an error in principle togive them primacy over other sentencing principles such as rehabilitation: (case cites omitted). [18] Absent exceptional or unique circumstances, it is incumbent on the sentencing Judge to give primacy to the deterrence anddenunciation when imposing a sentence for serious sexual assault. [78] The circumstances surrounding the sexual assault also have bearing on the approach the Court should take in the sentencingprocess.

A sexual assault on a complainant who is sleeping or passed out is an aggravating factor in sentencing (Arcand). [79] On that point the Court in Kasokeo said the following at paragraph 5: 5. Sexual assault upon a woman asleep constitutes a substantial and gross violation for sexual and personal integrity and most oftenresults in lasting, serious harm to the victim. As these cases also demonstrate, sentences in the range of 30 to 36 months are regularlyimposed for similar offences committed in similar circumstances by similar offenders. Gladue Considerations [80] As a First Nations person, Mr.

T. is entitled to have the sentencing considerations set out in s. 718.2(

e) and in R. v. Gladue (SCC), [1999] 1 S.C.R. 688 and subsequent cases apply in deciding on a fit and appropriate sentence in his case. In light ofthat, it is instructive to be reminded of what the Supreme Court of Canada said in Gladue. [81] At paragraph 34 the Court said: [34] In our view, s. 718.2 (

e) is more than simply a reaffirmation of existing sentencing principles. The remedial component of theprovision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencingjudges to undertake the process of sentencing Aboriginal offenders differently, in order to endeavor to achieve a true fit and propersentence in the particular case. It should be said that the words of s. 718.2 (

e) do not alter the fundamental duty of the sentencing Judgeto impose a sentence that is fit for the offence and the offender. For example, as we will discuss below, it will generally be the case as apractical matter that particularly violent and serious offences will result in imprisonment for Aboriginal offenders as often as for non-Aboriginal offenders. What s. 718.2 (

e) does alter is the method of analysis which each sentencing Judge must use in determining thenature of a fit sentence for an Aboriginal offender. [82] The Court went on to say in paragraphs 78 and 80: [78] In describing the effect of s. 718.2 (

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders mustalways be sentenced in a manner which gives greatest weight the principles of restorative justice, and less weight to goals such asdeterrence, denunciation and separation. It is unreasonable to assume that aboriginal peoples themselves to not believe in the importanceof these latter goals, and even if they do not, that such goals must not predominate in appropriate cases.

Clearly there are some seriousoffences and some offenders for which and for whom separation, denunciation and deterrence are fundamentally relevant. [80] As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the CriminalCode? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offenderand his or her community?

What combination of systemic or background factors contributed to this particular offender coming beforethe courts for this particular offence? How has the offender who is being sentenced been affected by, for example substance abuse in thecommunity, poverty, or overt racism, family or community breakdown? Would imprisonment effectively serve to deter or denouncecrime in the sense that could be significant to the offender and the community, or are crime prevention and other goals better achievedthrough healing?

What sentencing options present themselves in the circumstances? [83] The Supreme Court of Canada supplemented its directions on sentencing aboriginal offenders in serious cases in Wells when it

said at paragraph 42 : [42] Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions of sentencing, it is reasonable to assume that for some aboriginal offenders, and depending on the nature of the offence, the goals of denunciation and deterrence are fundamentally relevant to the offender’s community.

As held in Gladue , to the extent that generalizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation and deterrence are accorded increasing significance. [ 84 ] Of the principles of sentencing the Court must apply the proportionality principle set out in s. 718.1 that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender is extremely important.

In Arcand it was held to be the most important principle. This was expanded upon in Nasogaluak where the Court said at paragraph 42: [42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just desserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused….. Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. (cites omitted). Aggravating, Mitigating and Other Factors [ 85 ] In light of Mr. T.’s circumstances, the nature and circumstances of the offences and the direction from the case law there are aggravating, mitigating and other factors to be considered in arriving at a just and appropriate sentence. Aggravating [ 86 ] The following are aggravating factors:

a) the extensive, varied, repetitive and serious nature of his criminal history. Mr. T. is by any reasonable measure a prolific offender;

b) the gravity of the offence committed against Ms. L. and the additional circumstance of committing the offence in the presence of her young child. Mr. T.’s assault only ceased when she fought back;

c) the opportunistic and predatory nature of the assaults and the vulnerability of both victims given that they were asleep when the assaults commenced;

d) Mr. T.’s refusal, up to now, to cooperate in the completion of any sort of psychological or psychiatric assessment and his general disinclination to participate in sex offender or alcohol abuse counselling or treatment despite his past statements to the Court of his wish to do so;

e) Mr. T.’s denial of wrongdoing at the time of the offences and for a considerable time subsequently which is indicative of a lack of insight into his offending and the impact of it on the victims;

f) based on the modelling completed by the Probation Officer for classification purposes and his criminal history Mr. T. is at a high risk to reoffend in general and specifically in a sexual fashion,

g) the severe negative physical, psychological and emotional impacts the assaults have had on both complainants Mitigating [ 87 ] The following are mitigating factors:

a) the circumstances of Mr. T.’s personal upbringing including his dysfunctional family dynamics, the physical, emotional and sexual abuse he was subjected to and his disrupted education;

b) his early developing and lifelong struggle with alcohol and substance abuse;

c) the support he has in the community from its leadership, its social resource providers and his family;

d) his expressed recent understanding of the interaction of his childhood traumas, his substance abuse issues and his offending and the need to address all of those matters;

e) Mr. T.’s statement to the Court expressing remorse and the shame he feels for himself and his family in the community. Other Factors [ 88 ] The following factors must be considered:

a) the systemic considerations surrounding aboriginal offenders as set out in Gladue and subsequent decisions that inform and impact on the sentencing process,

b) the different levels of sex offender assessment, counselling and treatment available locally through Community Corrections

compared to BC Corrections and the Correctional Service of Canada;

c) the lack of any forensic psychiatric or psychological report or risk assessment to assist the Court in determining the level of intervention and supervision necessary to assist Mr. T. while at the same time ensuring the safety of the public;

d) the letter from Mr. T.’s Chief that extolls his virtues but gives no mention or recognition to the fact that the victims in these, and previous offences, were young aboriginal women Mr. T. encountered in vulnerable circumstance. [ 89 ] In arriving at a just and appropriate sentence for each of the offences careful consideration has been given by the Court to the following:

a) Mr. T.’s dysfunctional and multi-faceted abusive childhood,

b) his longstanding struggles with alcohol and substance abuse,

c) his lengthy and serious criminal history and the types and frequency of the offences in that history,

d) the particular circumstances of the offences before the Court including the circumstances of the victims,

e) the applicable provisions of the Criminal Code and the

interpretation of those provisions in the case law,

f) the specific sentencing approach for aboriginal offenders mandated by Gladue and subsequent decisions,

g) the submissions of counsel. [ 90 ] Dealing first with the bail breaches in file 8896-KA-2 there is little merit to Defence counsel’s submissions that Mr. T. thought the bail order was concluded and that, in short order, the lead charges were stayed by the Crown. Mr. T. travelled a considerable distance while intoxicated (including a ferry ride) to go to the victim’s residence to cause her alarm. This was the same victim he had victimized in the past in a number of ways resulting in previous convictions for a variety of offences.

A concurrent sentence on both counts of four months imprisonment, less credit for time served adequately addresses the purposes and principles of sentencing. [ 91 ] There are many similarities in the circumstances of Mr. T.'s assault on Ms. B. and the sexual assault on Ms. L. including:

a) the offences occurred in a residence during a social gathering in which considerable alcohol was consumed by all the parties,

b) the victims were members of Mr. T.'s extended family by blood or by marriage,

c) the victims were asleep when the assaults commenced and as such unable to initially repel Mr. T.'s advances,

d) the victims were able to push Mr. T. away and flee to end the assault. [ 92 ] Mr. T.'s attack on the victims while they were asleep is also very similar to several of the other sexual assaults he perpetrated on children or young women in the past. In addition, it appears that without exception in all of the sexual assault convictions the victims were aboriginal girls or young women. [ 93 ] Defence counsel's submissions regarding the appropriate sentence for the assault and sexual assault cannot be accepted. Mr.

T.'s history suggests his behaviour in the community while intoxicated is a danger to the public and in particularly women; be it his spouse or young sleeping females. [ 94 ] Despite Defence counsel's assertions that Mr. T. would, with the assistance of others, be able to make it to programming in the community that representation rings hollow when set against Mr. T.'s past unfulfilled promises to the Court in that regard . [ 95 ] Mr. T. has had a difficult life, complete with all the systemic hallmarks described in Gladue and subsequent cases.

He has ended up in circumstances where his personal demons have resulted in alcoholism of such rampant proportions that he cannot control his inappropriate social behaviours. [ 96 ] The primary sentencing principles of denunciation and deterrence for such offences points to the necessity of a substantial period of incarceration, particularly for the sexual assault. [ 97 ] There is no doubt that rehabilitation is also an important principle and it must be recognized that there are many ways to affect that goal. However, Mr.

T. is an untreated sex offender who has been committing sex crimes for over 16 years. [ 98 ] When one compares the services and programs available to a person out of custody through Community Corrections, a person in jail in the provincial prison system and a person incarcerated in a penitentiary with the Correctional Service of Canada it becomes very evident that Mr. T.’s rehabilitation would benefit from the much greater and intensive programming available in a federal penitentiary. The programs and services available there will offer a greater chance of success for Mr.

T. to address his life issues, his alcoholism and his sex offending than the alternatives. Obtaining that additional level of rehabilitative programming, albeit in a confined environment, will provide a better chance for his successful reintegration into the community upon his release. [ 99 ] When applying the relevant sentencing principles to Mr.

T.'s unique personal circumstances, his past criminal behaviour , the nature of his present criminal offences, and the proposals of the Crown and Defence counsel concerning the appropriate sentence to be imposed; a moderate sentence of incarceration in a penitentiary is both just and appropriate in this case . DECISION

Ancillary Orders [ 100 ] There will be a SOIRA Order as requested by the Crown. Given the nature of the offence for which Mr. T. has been found guilty that order is required unless he can convince the Court otherwise. Defence counsel did not make any submissions why such an order should not be granted. [ 101 ] There will be an order in Form 52 requiring B.V.T. to comply with the Sex Offender Information Registry Act for life and to sign any necessary documentation required by that Act. [ 102 ] The Count on Information 8950 is a primary designated DNA offence.

Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from B.V.T. by June 30, 2016. [ 103 ] Information 8950 also attracts a mandatory firearms prohibition pursuant to s. 109 of the Code .

B.V.T. is prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life. Sentence [ 104 ] B.V.T. shall serve the following periods of incarceration on the following Informations before the Court: 1. On Information 8896-KA-2: for the two offences of breach of an undertaking, four months on each Count to be served concurrently, less four months credit for time served. 2.

On Information 8932-C2: for the offence of assault on C.B., six months less six months credit for time served, consecutive to Information 8896-KA-2; 3. On Information 8950-1: for the offence of sexual assault on A.L., 48 months less 12 months credit for time served, consecutive to Informations 8896-KA-2 and 8932-C2 leaving three years left to be served in a federal penitentiary. [ 105 ] While he is incarcerated, Mr. T. is prohibited from communicating, directly or indirectly with A.L., C.B. or S.C . __________________________ M.J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC