R. v. Edgar Date:, 2015 BCPC 242

Citation: R. v. Edgar Date: 20150420 2015 BCPC 0242 File No: 900953-1 Registry: Bella Coola IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH GLENN EDGAR ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B.G. HOY BAN ON PUBLICATION [S. 486.4(2) C.C.C.]

Counsel for the Crown: S. Watson Counsel for the Defendant: S. Petri Place of Hearing: Abbotsford , B.C. Date of Hearing: December 13, 2013 Date of Sentence: April 20, 2015 [ 1 ] THE COURT : The defendant was found guilty on December 13, 2013 Information number BC900953 of sexual assault, with an offence date of August 23rd, 2012. The Crown had proceeded summarily on that Information. He entered a guilty plea on September 26, 2013 on Information number BC900952 to a charge of break and enter and commit the indictable offence of sexual assault, which occurred on August 25th, 2012.

By brief history of the latter offence, delays occurred in sentencing to this date due to change in defence counsel and an application to strike a plea, which was later abandoned. [ 2 ] Of the facts of these offences, the sexual assault charge of August 23rd, 2012 involved an adult female who had been asleep on a couch when she was touched in a sexual manner on her buttocks and leg on the exterior of her clothing by the defendant. The next offence involved a seven-year-old girl. The defendant knew the mother.

Sometime after 2:00 a.m. he broke into her residence with a rock thrown through a window while she was absent. The victim, who was seven years old, did not hear the sound of the glass shattering but was awoken as the defendant was licking her vaginal area. He then took her outside to a small clearing under a tarp near the residence. There he removed her pants and underwear, touched and licked her vaginal area again and had also placed his penis against this part of her body. The medical evidence establishes that there was no penetration, nor is the Crown saying that anything of that nature had occurred.

At one point the child said in the course of this incident that as she told him to stop and wanted to return to her home, he stated he was going to punch her. In both of these offences alcohol was a significant factor. [ 3 ] The defendant has a record. He is 32 years old and grew up in the small community of Bella Coola. He is a single parent with three young children. Most notable of his history are two prior sexual assaults. A one-year conditional sentence was imposed on May 16, 2011. They involved incidents of sexual touching, one of which he was found guilty and the other was a guilty plea.

Alcohol intoxication was the driving force in each offence. These two offences involved adult females. Of further note, the CSO was terminated due to a breach on October 26th, 2011. He served the time remaining of 208 days in custody. [ 4 ] Since he was convicted on December 13, 2013 his bail was revoked on both of these outstanding Informations. There is dead time from another period of incarceration as he awaited bail for four months. Total dead time to this date is approximately 20 months. [ 5 ] Examining some of the aggravating and mitigating factors, I note the record.

As well, the offence occurred to a child. Of the other offence, it is a repetition of touching again of adult females. With respect to the incident of the child, he broke into a residence to commit this crime. While this is not a breach of trust situation, it is nonetheless noteworthy, as he knew this family. As well, he was on probation for the prior sex assault convictions and from the probation order he was on a non-consumption provision which he was in breach of. In noting these aggravating elements, I am mindful of the Code provisions addressing the same, s. 348.1 and 718.2(ii.1).

I am also mindful of the significant impact this offence has had on the grievous loss of security for this child. In mitigation, the serious offence committed against a child was a guilty plea. He had earlier been on bail prior to the conviction of December 13th and from those bail terms he was required to attend treatment at an alcohol treatment facility, which he did. The reports establish a relatively positive interaction. There are some guarded observations of the value that he might have gained, which was viewed potentially as rather limited given some cognitive disabilities.

Nonetheless, he performed relatively well. There is the observation that he did have a slip and drank when he returned to Bella Coola at one point for court. However, a further positive aspect from this was his acknowledgement of his realization that association with negative peer groups had led him astray and his strong desire to continue on a path of sobriety. [ 6 ] From Gladue considerations there was an extensive report prepared by Stuart Cadwallander in 2010. This defendant bears the burden of his parents' negative residential school experience.

It is from that experience that the dysfunction of his family, driven by alcohol, has bled into his lifestyle. From the psychological report and the Presentence Report, he has struggled with his ability to learn. There are indications that he may be suffering from FAS. IQ tests place him in the range of the mentally handicapped. Whether this is due to a cognitive disability, brain injury, FASD or alcohol-induced cognitive deficits or a combination of these is unclear, but he certainly has a significant deficit that impairs his cognitive functioning ability.

He has been diagnosed with severe and chronic alcoholism. On the Static-99R testing results his recidivism is assessed as moderate high, while on the Stable test he is predicted as moderate for recidivism. [ 7 ] At page 10 of Dr. Lopes' (phonetic) report this is stated: Mr. Edgar has previously perpetrated other sexual offences and despite having received the sex offender program he has again perpetrated another sexual assault, and this time against a child.

He has also demonstrated a continued level of denial, minimization, blame shifting and other defensive mechanisms which he should know well and have the ability to challenge, from having attended the program prior and very recently. Unfortunately, he continues to show numerous cognitive distortions and has not addressed his risk factors, and as such he should still be considered to be at the equivalent level of an untreated sex offender from the perspective of future risk. [ 8 ] Society's protection occupies a very elevated focus in sentencing in this instance.

The defendant appears to have been opportunistic, especially as one reflects on his pattern of offending. It is noteworthy that these two offences for which he is being sentenced today were separated in time by only two days. One would have thought that it would have had some impact on him, that is, the experience of one incident leading into the next. He seems unable to control himself, especially where he has consumed alcohol.

[ 9 ] Balanced against this is the fact he is a native offender with many of the classic negative forces that are at play in his life. It is a dysfunction that has crept not only through his family's generation but as well has had a profound effect to his community of Bella Coola, where so many others have had the same types of problems.

It is a systemic and generational problem that continues. [ 10 ] Bearing in mind Gladue and Ipeelee considerations and the Code , and as I balance that aboriginal background and bearing in mind the provisions of 718.2(d), there are some positive aspects of the defendant that come into play. I note particularly that while he has been in custody he has participated extensively with the resources available while at the remand centre. Through counsel he has provided to this court evidence that he has completed many of the modules that are offered.

There is the fact that while he was on bail he performed reasonably well in addressing his addiction concerns. While I do not see that this education has come full circle, it is not that he is without promise. [ 11 ] As I balance the various aspects of sentencing that I must by the Code and the authorities and by the submissions of counsel and the guidance provided to me by the various cases, in my view the period of incarceration that is most appropriate is a federal one, one that will give him the elevated level of supervision. Overall, the sentence that I would impose is four-and-a-half years.

That would be four years for the sex assault as it relates to the child and six months consecutive for the other Information. As he has now done 20 months of dead time from August 27, 2012 until December 18, 2012 just under four months, and from December 13th, 2013 to April 20th, 2015 awaiting sentence just over 16 months, so collectively 20 months plus the multiplier of 1.5 would yield 30 months of the sentence that I impose. The new time is two years plus three years of probation.

This, in my view, would address the various sentencing principles and provide the best and longest period of supervision, both within the institutional setting and in the community upon his release. [ 12 ] The other orders that I make, and while he has probably already provided a DNA sample I will make the order again. It is a primary designated offence, s. 487.051(1) that he provide a sample of his DNA.

Section 490.012. Pursuant to 490.013(2)(

c) I make the SOIRA order for life.

Section 109, I make a mandatory order of weapons prohibition for life. While he is in custody an order 483.2(1) prohibiting him from having contact with C.G.E. or her mother M.G. or G.J. or any other immediate members of their family. [ 13 ] The surcharge is waived. [ 14 ] Upon his release from custody the terms of probation are these: Keep the peace, be of good behaviour. [ 15 ] Upon your release, report in person to a probation officer forthwith, thereafter as directed.

You are to provide your address to your probation officer and not to change it without his or her prior approval. [ 16 ] No contact, direct or indirect, with C.G.E. or any members of her immediate family, and to immediately leave their presence should you be in a public or private place where they are present, except as may be incidental while at cultural events.

You are prohibited from attending at any residence, school or workplace of C.G.E. or any member of her immediate family. [ 17 ] You must attend and successfully complete such counselling or program as directed by your probation officer, and without limiting the generality of this condition, such counselling or program may in the discretion of your probation officer include substance abuse, anger management, drug and alcohol residential treatment programs and psychological or psychiatric counselling, a forensic sex offender program and the sexual offender maintenance program. [ 18 ] You are prohibited from possessing or consuming any alcohol or non-prescription drugs. [ 19 ] The surcharge is waived.

Any other terms, counsel? [PROCEEDINGS] [ 20 ] THE COURT: I agree with you on the point about reside as directed. [PROCEEDINGS] [ 21 ] THE COURT: We are saying collectively four-and-a-half years, that there remains 24 months. Of those 24 months I will assign it like this, the 24 months to the C.G.E. file and then one day running concurrent on the J. file. [ 22 ] THE CLERK: So it's no longer a new time of six months, it's now one day on this [ 23 ] THE COURT: One day concurrent, right. [ 24 ] MS.

WATSON: Concurrent with 24 months on the C.G.E. [ 25 ] THE CLERK: Okay, so how much credit did you give him then on -- [ 26 ] THE COURT: Thirty months. [ 27 ] MS. WATSON: So he got six months credit on the file involving G.J. [ 28 ] THE CLERK: And G.J.’s is dash 1 or the 2C? [ 29 ] MS. WATSON: The dash 1. [ 30 ] THE CLERK: So the credit on the dash 1 is -- [ 31 ] THE COURT: Six months.

[ 32 ] THE CLERK: Six months credit. And on the 2C which is the indictable matter? [ 33 ] MR. PETRI: So he's getting credit for 24 months and he still has 24 remaining. [ 34 ] THE COURT: That's right. So two years new time, right. [ 35 ] THE CLERK: Okay, and the credit on that matter? [ 36 ] THE COURT: Two years. [PROCEEDINGS] [ 37 ] THE COURT: Now, just addressing one other point with reference to the probation order and that is the prohibiting him from schools and playgrounds and whatnot. [PROCEEDINGS] [ 38 ] THE COURT: In the circumstances, I am not going to make an order in relation to 161. B.G. HOY Provincial Court Judge