R. v. C.S.M., 2022 BCPC 168

Citation: R. v. C.S.M. 2022 BCPC 168 Date: 20220628 File No: 94993-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. C.S.M. BAN ON PUBLICATION 486.4(1) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. WYATT Counsel for the Crown: A. Saettler Counsel for the Defendant appearing by video: P. Cooper, agent for E. Talic Place of Hearing: Kelowna , B.C. Date of Hearing: April 6, 2022 Date of Judgment: June 28, 2022

[1] THE COURT: On April 6, 2022, C.M. pled guilty to Count 1 of the indictment which is that from November 1, 2013, to June 9,2014, inclusive, being a person in a position of trust or authority towards a young person, R.B., or a person with whom that young personis in a relationship of dependency, or a person who is in a relationship with that young person that is exploitative of that young person,did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of that young person, contraryto s. 153(1)(

a) of the Criminal Code. [2] In regards to the nature of the offence, the court in R. v. S.J.B., 2018 MBCA 62, stated the following at paragraph 17: Experience teaches that, while the legal age of sexual consent is normally age 16, persons under age 18 are vulnerable to sexualexploitation by people in a position of trust or authority over them or with whom they are in a dependent relationship, such as a parent,relative, babysitter, teacher, counsellor or employer.

Parliament has prohibited any sexual activity between a young person and a personto whom, because of the nature of his or her relationship, the young person is “in a position of vulnerability and weakness” [citing] (R vAudet, (SCC), [1996] 2 SCR 171 at paras 23, 36). [3] C.M. is before me for sentencing today.

Crown has sought a jail sentence of 30 months as well as various ancillary orders.Defence is seeking a conditional sentence order of two years less a day or, in the event the court determines that a CSO is not a fit andappropriate sentence, a jail sentence of one year or less. [4] The following facts are not in issue. In early November 2013, the complainant, R.B., was enrolled at [omitted for publication]Academy, hereinafter referred to as "[omitted for publication]," in West Kelowna, B.C., by her parents.

R.B. was 16 years old at the timeand was sent to [omitted for publication] as her parents believed that she had started using drugs and was associating with a negative peergroup. [omitted for publication] was a treatment facility licenced by Interior Health which provided education, assessment, and treatmentservices to troubled teens from across Canada. At the time R.B. was sent to [omitted for publication], her family lived in Ontario.

For thefirst 30 days of her attendance at [omitted for publication], her communication with her family was limited to letters only. [5] C.M. and his wife, J., were employed as host parents for [omitted for publication] from July 2013 to August 2014. They residedin the Shannon Lake area of West Kelowna, B.C. They were 27 years old at the time R.B. came into their care in November 2013.

Theyhad three young children of their own. [6] Host parents for [omitted for publication] were to create a parental environment for the students and were to enforce [omitted forpublication] rules relating to acceptable clothing, consumption of alcohol, and use of tobacco or other substances. Host parents were notto use alcohol or tobacco themselves during any interaction with the young person in their care. The M.’s did not always comply withthese rules and, at times, gave R.B. and their other student beer and cigarettes.

R.B. lived with the M. family until late February 2014.During her time living in their home, she turned 17 years old. During the three-and-a-half months that she lived with them, there was atleast one other [omitted for publication] student residing in the home. [7] At the end of November 2013, R.B. came home early from school one day and was very upset as she had learned that her parentswere relocating from Ontario to Nova Scotia.

C.M. was home alone at the time and tried to comfort R.B., telling her to cuddle with him.From that date forward, C.M. made gradual moves on R.B. and, by December 2013, he was engaging in sexual intercourse with her.They had sexual relations with each other two to three times per week, including intercourse and oral sex, in the bedroom of C.M. and hiswife, in R.B.’s bedroom, and in C.M.’s truck. [8] Another student who resided in the home described seeing C.M. and R.B. together and said they acted like boyfriend andgirlfriend.

She saw C.M. lying on a bed with only shorts on with R.B. lying beside him and touching his chest hair. [9] On February 4, 2014, J.M. found C.M. and R.B. lying together, both naked, in R.B.’s bed.

Upon observing them, J.M. wokeC.M. and he told her to "fuck off." R.B. then started crying and said, "I am sorry, Mom." She called J.M. who was her host parent,"Mom." J.M. did not report what she saw to the police until November 2015 which was more than one-and-a-half years after the offencehad occurred. [10] Following her discovery, J.M. asked [omitted for publication] to remove R.B. from the home, but she did not tell anyone whathad actually happened as C.M. told her that, if the truth were known, they would lose their own children.

The M.’s reported to [omittedfor publication] that R.B. needed to be removed from their home, alleging that she was emotional and aggressive with their threechildren. R.B. was upset and emotional the day after J.M. discovered her husband and R.B. in bed together and she removed herself earlyfrom class that day. [11] Before R.B. was removed from the M. home at the end of February, one evening she was drinking at the home with Mr. and Ms.M. and Ms.

M., who was reportedly drunk, said to R.B., "If my husband can kiss you, then so can I," and she then tried to kiss R.B. [12] Following R.B.’s transfer to another host family, C.M. continued to see her. R.B. would sneak out of her host home at night andC.M. would pick her up. They would then have sex together. C.M. did not use a condom or other protection. [13] At the end of June 2014, R.B.’s parents removed her from [omitted for publication] and brought her home. Following this, C.M.set up a Facebook account in the false name of A.W. and used this account to continue to have contact with R.B.

The messages he sent toher included expressions of love, sexual comments, and promises of a future together. Eventually the messages were discovered byR.B.’s mother. She reported the messages to [omitted for publication] and advised them that she believed that there had beeninappropriate behaviour by C.M. towards her daughter.

She also provided her daughter's phone records to [omitted for publication] whichshowed 16 phone calls between C.M. and R.B. between June 30 and July 15, 2014, which was after R.B. had moved home. [14] When I sentence an offender, I must take into account the purpose and principles of sentencing in the Criminal Code, thecircumstances of the offence, and the circumstances of the offender. To assist me in my decision, I had fulsome submissions from bothCrown and defence as well as various materials including a psychological and risk assessment obtained by C.M., various letters from his

family and friends that are in the nature of character references, a victim impact statement from R.B., and numerous cases. I will not refer to every case in my decision today. [ 15 ]

Section 718 of the Criminal Code provides as follows: 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 that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 16 ]

Section 718.1 provides that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 17 ]

Section 718.2 provides that a court that imposes a sentence shall also take into consideration both aggravating and mitigating factors. The following are statutory aggravating factors in the case at bar. Firstly, that the offender, in committing the offence, abused a person under the age of 18; secondly, that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and thirdly, that the offence had a significant impact on the victim considering their age and other personal circumstances. [ 18 ]

Section 718.2 also provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 19 ] The first piece of information that I will discuss is the report from the psychologist that C.M. retained.

Dr. Bartel was hired to do a psychological and risk assessment in preparation for the sentencing hearing. C.M. was interviewed by Dr. Bartel in January of 2022 and the report was written on February 7, 2022. Dr. Bartel reviewed C.M.’s psychological testing results, the report to Crown Counsel that was written by the police, as well as summaries of the victim and witness statements. In addition to interviewing C.M., he also talked on the phone to J.M. who was C.M.'s spouse. [ 20 ] Crown took no issue with the qualifications of Dr.

Bartel, but did express some concerns about the contents of the report and C.M.’s reported version of the offence. I will discuss those concerns and comments shortly. In his interviews with Dr. Bartel, admitted to having what the psychologist refers to as a sexual and romantic relationship with the victim. He told the doctor that they only occasionally engaged in sexual touching and the report states that he, referring to C.M., implies that they never had penetrative sexual intercourse.

These statements are at odds with what are the admitted facts of this case which are that C.M. engaged in regular, which was described to the court as two to three times per week, sexual activity with the victim which included sexual intercourse and oral sex. [ 21 ] When I questioned counsel about these contradictions, she replied that there was some misunderstanding between C.M. and the psychologist and then she directed me to the part of the report, specifically paragraph 43, which states that even if denial and minimization were indeed occurring, the relationship to the issue of C.M.’s potential risk is minimal.

Dr. Bartel states that denial is common among those who have been accused or convicted of sexual offences and is due to fear and shame. He goes on to say, however, that denial continues to be recognized by experts in the field as an important risk factor, particularly as it pertains to higher-risk offenders as they typically have more risk factors and require more intervention and management in the community.

He states that this is not the case for C.M. [ 22 ] I find the fact that C.M. misled his own psychologist, the person who was hired by him to conduct a risk assessment, about the true extent of the offending behaviour to be troubling. To me, it demonstrates denial and minimization. At paragraph 46 of the report, Dr.

Bartel states that C.M. has yet to participate in psychological treatment or intervention to address the offence and that he also presents with some gaps in insight and understanding which, in the psychologist's opinion, warrants participation in specialized sex offence intervention or programming. [ 23 ] Dr. Bartel opines at paragraph 44 of his report that there are likely several factors that led C.M. to offend. He refers to difficulties in the M.’s marriage, to C.M.'s feeling of low self-worth and sexual insecurity, and opines that C.M. likely was suffering from a major depressive disorder.

He then states that, with the introduction of young female billets into the home, C.M. turned to the victim for emotional connection and support which ultimately progressed into a sexual relationship. [ 24 ] He concludes in paragraph 44 by stating that C.M.’s immaturity and emotional needs selfishly superseded his better judgment and knowledge of right and wrong at the time. This comment seems to be directed at the issue of moral blameworthiness of this offender.

I reject the notion that this offender, who was a 27-year-old father of three and who was 10 or 11 years older than the victim who herself was clearly a vulnerable youth, who was put into his care by her parents who lived at the other end of the country, did not know that what he did was wrong. To the contrary, he knew she was vulnerable and troubled and I conclude that his moral blameworthiness is on the higher end.

[ 25 ] As to the risk assessment, Dr. Bartel performed two different tests and concluded that C.M. is at low risk to sexually offend at this time.

He identified four potential risk factors including that C.M. had suffered a major mental illness which was his depressive disorder, that he had problems with coping with stress, that he had had relationship problems with his spouse, and that his lack of understanding of the appropriateness of his relationship with the victim could be indicative to some degree of problems with self- awareness. [ 26 ] The psychologist said that many other risk factors that are screened for were not present including extreme minimization, sexual deviance, physical or psychological coercion, substance use problems, and a number of others.

It is not clear to the court what "extreme minimization" means, but I conclude, based on the admitted facts and what was described by C.M. during his interview with Dr. Bartel about the extent of his offending with the victim, that he has minimized the offence and his role in it.

I am not disputing the finding that C.M. is a low risk to reoffend, as there is no evidence to the contrary, but I am not able to find as a mitigating factor in this case that he has insight. [ 27 ] As I stated earlier, I am required to consider both aggravating and mitigating factors in the case before me and I have done so in this case as follows. I have concluded that the following are aggravating factors. Firstly, there are certain statutory aggravating factors pursuant to s. 718.2 of the Code . Firstly, that the offender abused a person under 18.

R.B. was 16 years old and turned 17 during the time period over which the offence occurred. [ 28 ] Secondly, that the offender abused a person while in a position of trust. C.M. was the victim's father figure while she lived in his home. She was thousands of kilometres away from her own family, sent away by her parents as a result of her allegedly poor behaviour and drug use. So she was an incredibly vulnerable victim. The court in R. v.

Friesen stated at paragraph 126 that: Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence. [ 29 ] At paragraph 127, it said that the presence of the "trust relationship may inhibit children from reporting sexual violence," and that, "The breach of trust may produce 'feelings of fear and shame' that further discourage reporting" which, of course, is what this victim experienced as I will next describe when discussing the next statutory aggravating factor.

In Friesen , the court said at paragraph 128 that the barriers to reporting can be particularly pronounced when the perpetrator of the sexual violence resides with the victim and is a parent or caregiver. [ 30 ] Of course, that was the case here. C.M. and his wife were the victim's billet parents and she was dependent upon them for her shelter and safety in the months she resided with them.

Even after the abuse was discovered by J.M., the victim stayed in the home until later that month and appears to have suffered upset and indignity by the M.s lying to the Academy about why the victim could no longer reside in their home. The court in Friesen said that a person who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child. [ 31 ] Thirdly, there has been a significant impact on the victim.

The victim impact statement read out in court by R.B. and filed with the court sets out in detail how this offence has impacted her for the past eight years, emotionally, physically, and financially. She relapsed following her return home, she has had a suicide attempt, she self-harmed in other ways, and she has continued to struggle with shame and feelings of low self-esteem as she felt guilt. [ 32 ] An additional aggravating factor here is the degree of physical interference.

In this case, there were multiple incidents of unprotected sexual intercourse as well as oral sex and, thus, the degree of violation of the victim's bodily integrity was significant. With the intercourse being unprotected, this increased the risk of harm to the victim by exposing her to a risk of disease and pregnancy. In Friesen , at paragraph 139, the court said this is an aggravating factor. I also find that the length of the period of offending is aggravating. It began in November 2013 and continued for seven months. [ 33 ] I find the following to be mitigating factors. Firstly, there is the guilty plea.

This is a significant mitigating factor as there was, I am told, an indicated intention early on for C.M. to plead guilty. The victim never had to prepare to testify in a trial. [ 34 ] Next, there is the fact of the support of C.M.’s family and friends. C.M. filed numerous letters of support from his family including his wife, his father, his brother, and his mother-in-law.

He also filed letters of support of long-time friends and people who have come to know him in the past few years, all of whom describe him as being a person of good character who is a family man. [ 35 ] I do wish to make a comment about a couple of these letters of support. One is about the letter from C.M.’s brother, R.M. That letter suggests the victim was, and I quote, "a kindred spirit to C.M.," and was, I quote again, "overtly welcoming to her interest in him." That comment borders on victim-blaming and shows a complete lack of understanding of the impact of this offence on the victim who was a child.

Various other letters seem to minimize the seriousness of the offence which was more than a simple lack in judgment or a one-time mistake. The offence occurred many times over a seven-month period and had a devastating impact on the victim. [ 36 ] The next mitigating factor is that C.M. has expressed remorse. He read a letter of apology to the victim in court which I find was genuine. [ 37 ] C.M. experienced a tumultuous childhood, as I read from the report from Dr. Bartel, having suffered physical abuse and being put into foster care.

C.M. has also suffered significant collateral consequences including the loss of his job as a care aide when this investigation came to light. C.M. comes before the court with no criminal record and, lastly, C.M. was assessed by Dr. Bartel as posing a minimal risk of reoffending. [ 38 ] Next, I will refer to the caselaw. The leading case on the issue of sexual abuse of children is R. v. Friesen , 2020 SCC 9 .

The facts of that case are not in any way similar to the facts in the case at bar, but that case is cited by Crown for the court's message that sentencing judges need to understand the wrongfulness of sexual offences against children and the profound harm that they cause and to give effect to both when they impose sentences. That case emphasizes that the primary sentencing principles in cases of sexual offences against children are deterrence and denunciation as codified in s. 718.01 of the Code .

[39] The court stated that the length of sentences for such offences must increase because society has gained a deeper understandingof the harm done to children through such offending behaviour. At the time this offence was committed in 2013 and 2014, the maximumsentence was 10 years when Crown proceeded by way of indictment. It is now 14 years. Defence counsel has urged me to be mindful ofthis when determining a fit sentence for C.M. as, of course, he is entitled under s. 11 of the Charter to be sentenced under the leastonerous of sentencing regimes.

Counsel also urged the court to consider cases that were decided closer to the time of this offence. I note,however, the following passage from Friesen at paragraph 110: Courts should accordingly be cautious about relying on precedents that may be “dated” and fail to reflect “society’s current awareness ofthe impact of sexual abuse on children” [citing] (R. v. Vautour, 2016 BCCA 497, at para. 52 ).

Even more recent precedentsmay be treated with caution if they simply follow more dated precedents that inadequately recognize the gravity of sexual violenceagainst children [citing] (L.V., at paras. 100-102). [40] In Friesen, the court stated that where the offence is committed on multiple occasions and for longer periods of time, thesentence should be higher to reflect the cumulative gravity of the crime and the offender's degree of responsibility and moralblameworthiness because the additional harm to the victim is a reasonably foreseeable consequence of multiple assaults. [41] In Friesen, the court also stated at paragraph 150 that a child's participation is not a mitigating factor nor is it a legally relevantconsideration at sentencing.

It said at paragraphs 152 to 154 that, "A victim’s participation should not distract the court from the harmthat the victim suffers as a result of sexual violence," and that a breach of trust or grooming that led to the victim's participation is anaggravating factor as adults always have a responsibility to refrain from engaging in sexual violence towards children. [42] The court cited the following passage from the case of R. v.

P.M., (2002) (ON CA), 155 O.A.C. 242, inreferring to adolescents who are victims of such crimes: … to exploit young teenagers during this period by leading them to believe that they are in a love relationship with an adult “reveals alevel of amorality that is of great concern” … [43] This comment is particularly relevant in the case at bar as there are various comments by C.M., by his brother in his letter ofsupport, and even by the psychologist that C.M. had a sexual and romantic relationship with the victim, that he and the victim were inlove, and so on.

These comments suggest a lack of insight into the fact that this victim cannot be regarded as a willing participant in thisoffence as she was a 16 to 17-year-old girl who C.M. appears to have groomed until she became a victim of his sexual offending.

In thewords of the court in Friesen at paragraph 125, he moved "an existing trust relationship along the spectrum," and this is an aggravatingfactor in his sentencing. [44] At paragraph 136 of Friesen, the court discussed the age of the victim and stated that courts must be particularly careful toimpose proportionate sentences in cases where the victim is an adolescent.

It said that: Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, eventhough adolescents may be an age group that is disproportionately victimized by sexual violence … [45] It said that: … sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, andunwanted pregnancy … [46] These comments resonate in the case at bar as the victim indeed suffered significantly as a result of the offence.

She self-harmed,she relapsed into substance misuse, and she attempted suicide in 2021. [47] In Friesen, the court said at paragraph 103 that:

Section 718.01 should not be interpreted as limiting sentencing objectives, notably separation from society, which reinforce deterrence ordenunciation. [48] It said: The objective of separation from society is closely related to deterrence and denunciation for sexual offences against children … [49] And: When appropriate … separation from society can be the means to reinforce and give practical effect to deterrence and denunciation. [50] Additional cases relied upon by Crown include the following: R. v. S.J.B., 2018 MBCA 62.

In this decision, the court increasedthe offender's jail sentence from 18 months to three years. The offender was 31 years old and pled guilty to sexual exploitation of his 17-year-old stepdaughter. He has unprotected sexual intercourse with her 10 to 12 times over a two-month period in 2015. He had no priorcriminal record and was deemed a low risk to reoffend.

The offence had a significant impact on the victim. [51] The Court of Appeal said the sentencing judge erred in numerous respects including when he characterized as a mitigating factorthat the offender did not coerce, threaten, or pressure the victim to have sexual intercourse. The Court of Appeal stated the fact that thevictim agreed to the offender's proposition to have sexual intercourse with him did not reduce his moral blameworthiness. The courtcalled this a case of repeated sexual abuse of a person under 18 by a stepfather who abused his position of trust. [52] R. v.

Worthington, 2012 BCCA 454: in this case, the offender pled guilty to the sexual assault of his stepdaughter when she was14 and 15 years old. The offender admitted that the behaviour included oral sex, masturbation, sexual touching, and kissing, that itoccurred once or twice a month, and that he groomed and manipulated the victim. The trial judge sentenced the offender to four years

and this was upheld on appeal. [ 53 ] R. v. M.S. , 2021 BCPC 347 : the offender was convicted in 2021 after a trial of sexual assault of his adopted daughter. The offence occurred in 2017 when she was 18 and he was 29 years old. The offending behaviour included kissing the victim on the mouth and putting his tongue in her mouth, grinding his body against her, touching and biting her breast on two occasions, and two incidents of sexual intercourse.

At the time, his adopted daughter was residing in his home as she had had a fight with her adopted mother and she was completely dependent on the offender for her shelter and support. The offence caused the victim to lack trust in others. The offender was found to be at low risk to reoffend, had no criminal record, and had family support. He denied the offence occurred so it was determined that sex offender treatment would not likely benefit him. [ 54 ] Crown relied on the case of R. v.

G.M. , 2015 BCCA 165 , in submitting that an appropriate range of sexual assault cases involving intercourse is two to six years. Crown sought three years. Defence counsel submitted that six to 18 months was a fit sentence. The court concluded that the victim was induced to consent to the sexual assaults by the offender's abuse of his position of trust and, thus, her consent was vitiated pursuant to s. 273.1(2)(

c) of the Code . The court also found as an aggravating factor that the victim was, because of her personal circumstances at the time, a vulnerable person. The court sentenced him to three years in jail. [ 55 ] In R. v. Dyck , 2019 MBCA 81 , the Court of Appeal upheld a sentence of three-and-a-half years for an offender convicted of sexual exploitation. The offender was 42 years old and the complainant was her 16-year-old student. The offender was an education assistant and the complainant was her student in a specialized program that was overseen by her.

The offences occurred in 2014 and included numerous incidents of fellatio and one incident of sexual intercourse. [ 56 ] In the case at bar, defence counsel relied on a number of cases in forming its sentencing position. Some of those cases include the following. Firstly, in R. v. Scofield , a 2019 decision of the Court of Appeal, the court replaced the six-month conditional sentence order imposed by the sentencing judge with a 12-month conditional sentence order.

In that case, the offender, a 22-year-old man with significant cognitive impairment, pled guilty to two counts of sexual interference involving two 15-year-old girls. He had sexual intercourse with them approximately five times and had them perform fellatio on him as well. He was deemed a low risk to reoffend. [ 57 ] The sentencing judge found that his cognitive impairment, which bordered on what the expert referred to as mild retardation, reduced his moral culpability. The court noted in that case that the accused was not in a position of trust vis-à-vis the complainants.

Clearly, that distinguishes that case from the case at bar. The court did comment in that case that multiple acts of sexual intercourse between a person in their early 20s and victims approaching 16 years old will normally attract a prison sentence of more than one year. [ 58 ] At paragraph 62, the court said that sentences are increasing as courts more fully appreciate the damage that sexual exploitation caused by adults causes to vulnerable young victims.

It remarked that some courts in other provinces have identified a higher starting point for the ranges than the ranges in B.C., and referred to Alberta setting a four-year starting point. In the case at bar, a number of the Crown's cases were from Manitoba and defence counsel did point this out and argued that the applicable range ought to be the range set by B.C. courts. [ 59 ] In R. v. E.O. , a 2019 decision of the Yukon Court of Appeal, the appeal court upheld a jail sentence of 15 months followed by two years of probation, but it did declare the mandatory minimum as unconstitutional.

In that case, the accused pled guilty to sexual interference in regards to his 17-year-old niece with whom he was in a position of trust. He had sexual intercourse with her a number of times. He had no criminal record, was Indigenous, was deemed a low risk to reoffend, and a sentencing circle that was held recommended a community-based sentence. [ 60 ] In R. v. Ralph , 2014 BCSC 467 , a 60-year-old accused pled guilty to sexual interference of a former student of hers from 1998 to 2000 when the boy was 11 to 13 years old. The offending included kissing, fondling, and oral sex.

The impact on the complainant was significant. The offender demonstrated remorse and she had significant health issues. She was deemed a low risk to reoffend. Crown sought three years' incarceration and defence sought a conditional sentence order. At the time of the offence, the maximum sentence was five years for this offence. It was increased to 10 years in 2005. The court found that a sentence of two years less a day was fit and that the sentence could be served as a CSO.

The court did consider, in imposing the CSO, that the offender's health condition was significant and the fact that the sexual offending did not include any attempts at sexual intercourse. Of course, that case can be distinguished from the case at bar, as well. [ 61 ] After a careful review of the materials before me and the able submissions of both counsel, I have determined that a fit and appropriate sentence for C.M. is 28 months in jail.

The aggravating factors in this case, most significantly, the breach of trust, the degree of physical interference, and the very significant impact on the complainant, cause me to conclude that a shorter sentence would not adequately address the principles of deterrence and denunciation. Given that this sentence is more than two years in length, a CSO is not available and, accordingly, his jail sentence will be served in a federal correctional facility. [ 62 ] In addition to the jail sentence, there will be ancillary orders. This is a primary designated offence.

So there will be a DNA order pursuant to s. 487.051(2) of the Criminal Code ; and there will be an order that he be enrolled in the sex offender registry. [ 63 ] What is the period of time sought for that? [ 64 ] CNSL A. SAETTLER: Ten years, I believe, Your Honour. [ 65 ] THE COURT: Is Crown also seeking a no-contact order in regards to R.B. and her family? [ 66 ] CNSL A. SAETTLER: Yes, please. [ 67 ] THE COURT: Okay, and that is 718 point -- can you give me the section? I make them a lot on bail orders, but a no-contact order on a sentence? [ 68 ] CNSL A.

SAETTLER: I apologize, Your Honour, I neglected to bring my Code .

[ 69 ] UNIDENTIFIED SPEAKER: I've got one up here. [ 70 ] CNSL A. SAETTLER: 743 point -- [ 71 ] THE COURT: Okay. [ 72 ] CNSL A. SAETTLER: -- 21(1), I believe, Your Honour. [ 73 ] THE COURT: Okay, thank you, and there are a number of outstanding counts that have to be dealt with. [ 74 ] CNSL A. SAETTLER: Yes, Crown directs a stay of proceedings on the remaining counts on the indictment. (REASONS CONCLUDED)