R. v. A. A. F. Date:, 2014 BCPC 46

Citation: R. v. A. A. F. Date: 20140311 2014 BCPC 0046 File No: 95281-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A. A. F. REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Ban on Publication 486.4(2) CCC Restricted Access Counsel for the Crown: C. L. Elliot Counsel for the Defendant: D.E.M. Jenkins, Q.C.

Place of Hearing: Prince George , B.C. Date of Judgment: March 11, 2014 [ 1 ] THE COURT: The defendant, A. A. F., has entered a guilty plea on Information 95281 from the Kamloops Registry to a charge of sexual assault, contrary to s. 271 of the Criminal Code , which occurred on June 2, 2012, in Kamloops. Circumstances of the Offence [ 2 ] The defendant and the complainant were staying in adjoining ground floor rooms of a Kamloops hotel on the day in question. The complainant and friends were having a party prior to going to a concert that evening.

At one point, the defendant became aware of the party and had a conversation with some of the people in the room and was eventually invited in to the party. [ 3 ] Throughout the evening of that day, the defendant was drinking heavily with a friend, and over a nine-hour period, the court is advised, he consumed upwards of 30 beer as well as some additional rye and water. [ 4 ] The party in the complainant's room broke up for awhile, while the complainant and her friends went to a concert, and then it resumed later at the end of the concert. [ 5 ] By then, the defendant was drinking to the point where his behaviour disgusted his wife, who vacated their room for the night.

The defendant returned to the party at the complainant's room at some point, and in the early morning hours, everybody left the complainant's room. Later, the defendant, in his drunken stupor, returned to the complainant's room. He has no recollection of what occurred next. [ 6 ] The complainant says that she felt the following as she was raised from her slumber: 1. somebody rubbing her back and arms; 2. somebody putting a hand down her shirt; and 3. somebody grabbing her hand and putting it between their legs. [ 7 ] When the complainant fully woke up, she saw the defendant and told him to leave, and he did.

The RCMP were called and they took a statement from the complainant and were directed to the defendant's room next door. He was arrested without incident by the RCMP. Impact on the Victim [ 8 ] The complainant has provided a victim impact statement to the court. It has been marked as an exhibit in these sentencing proceedings. The complainant describes in some detail the emotional effects that have been visited upon her as a result of this incident. She says that it took some time for her to be reassured that she should not feel shame or guilt as a result of what happened to her.

She states that she finds it difficult to place trust in others and that she is often mistrustful and suspicious of people who she meets because of what occurred to her. [ 9 ] The defendant recognizes the impact his actions have had on the complainant. He advised the court, when asked if he had anything to say, that although he cannot recall the incidents, he is very sorry if what occurred hurt the complainant and he apologizes to her. He also advised the court that he has not consumed alcohol since the incident on June 2, 2012.

Reference Letters [ 10 ] The defendant provided two reference letters that have been marked as an exhibit on sentencing. Both of those letters indicate that he is a dedicated family man who is well-regarded in his community and is considered trustworthy and friendly, hardworking and courteous. The actions that he has pled guilty to are extremely out of character when compared to those reference letters. Pre-Sentence Report [ 11 ] A pre-sentence report was prepared concerning the defendant. That report is based almost entirely on information provided by the defendant and his spouse.

There were attempts made to contact the complainant, but they did not result in any information being forthcoming. [ 12 ] The pre-sentence report can be described as generally quite positive. It appears from what the defendant and his wife have said to the report preparer that the actions on the day in question by the defendant were completely out of character, that he is a hardworking person who participates in community events and is generally a pro-social citizen, and he is a long-term employee of his present employer and is well-regarded. Criminal Record

[13] The defendant has a dated and minor criminal record. In 1968 he was convicted of uttering threats and received a suspendedsentence and a period of probation for one year. In 1993 he was convicted of assault and received a probationary sentence of six months. Defendant's Circumstances [14] The defendant is 64 years old. He has been married for over 20 years and with the same partner for almost 30 years. He andhis partner have two adult children.

He is a 10-year-long employee of B.C.H., and he is active in a local motorcycle club whichparticipates in taking various excursions and raising money for various charities in the community of Prince George and elsewhere. [15] The defendant describes himself as generally a social drinker, but it was acknowledged by his spouse that sometimes he drank toexcess and to the point of intoxication. [16] He has, as I have already stated, abstained from the consumption of alcohol since June of 2012.

The Law [17] Sections 718 through 718.2 of the Criminal Code set forth various considerations the court must keep in mind in determining anappropriate sentence in any criminal case.

Section 718 says as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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. [18]

Section 718.1 states: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [19]

Section 718.2 says, in part, in subparagraph (d): (

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, withparticular attention to the circumstances of aboriginal offenders. [20] The Crown and defence both presented a wide variety of case law on the topics at hand. The court is already quite familiar withmost of the cases cited by the Crown and defence, in part because I wrote a decision in 2012 in which many of the cases that have beenprovided to me on this occasion were provided on that occasion. [21] The cases provided by the Crown include the following: R. v.

Lindstrom, 2012 BCPC 354; R. v. Zacarov, 2011 ONCJ 25; R. v.Boden, 2012 BCPC 331; R. v. B.T.Y., 2006 BCCA 331. [22] The cases provided by defence counsel include the following: R. v. Gilmour, 2005 ABQB 354; R. v. Reyes-Borgwardt, 2010BCSC 1594; R. v. B.L., 2011 BCPC 254; R. v. T.J.H., 2012 BCPC 115 , 2012 BCPC 0115; and R. v. Racco, 2013 ONSC 1517.

Position of the Parties [23] The Crown takes the position that the defendant should serve a one-year conditional sentence order followed by two years ofprobation with the conditional sentence order including six months of house arrest and with both the conditional sentence order andprobation requiring certain activities on the part of the defendant, including treatment and counselling and no contact with thecomplainant.

[24] The Crown submits that the reasons for such a sentence can be focused on the fact that the defendant violated a person in avulnerable position in their temporary accommodation and that the behaviour was unacceptable in a public context. [25] Defence counsel's position is that the defendant should receive a conditional discharge, with the terms of probation sought bythe Crown in its submissions.

Defence counsel says that the conditional discharge is appropriate because the actions of the defendantwere completely out of character and that the defendant was just too intoxicated to understand what he was doing at the time and thatsubsequently he has stopped drinking completely and has resumed his life as a good citizen. Mitigating and Aggravating Factors [26] The mitigating factors in this case include the following: (

a) the defendant has lived generally a pro-social lifestyle. He has stable employment, a stable marriage, and he is activelyinvolved in his community; (

b) he entered a guilty plea before the trial, thereby saving the complainant from having to revisit the events; (

c) he gave a statement of remorse, saying that he was sorry if he harmed the complainant in any way; (

d) he has remained abstinent from alcohol since the events almost two years ago, recognizing, no doubt, that the alcoholconsumption on the night in question was a possible trigger to his actions; (

e) he immediately left the complainant when told to do so and did not engage in any sort of violence or attempts to importunethe complainant any more than the actions that have already been set out; (

f) he was cooperative with the RCMP at the time of his arrest and with the probation services in the compiling of the pre-sentence report; (

g) that based on the available information, the defendant is a very low risk to reoffend, particularly if he remains sober. [27] The aggravating factors in this case include the following: (

a) the defendant engaged in alcohol consumption to the point of being incoherent and, as such, unable to stop the behaviourhe participated in until he was confronted; (

b) he assaulted the complainant in an overtly sexual manner; (

c) he entered the complainant's private accommodation without invitation at the time of the events that led to the criminalcharges he is facing; (

d) he assaulted the complainant in circumstances where she was unable to provide consent or prevent the assaultive behaviour. Discussion [28] A conditional sentence order is available in this case because of the date of the offence and the manner in which the Crownproceeded.

Such an order is no longer available if this offence had occurred today because Parliament has seen fit to impose differentsanctions for this type of offence. [29] Although there are exceptions in what the case law describes as "unique circumstances," the general overarching sentencingprinciples are denunciation and deterrence for this type of offence.

That is usually accomplished by a jail sentence served either in acorrectional facility or in the community under a conditional sentence order. [30] A period of probation, carefully crafted, can provide some denunciatory and deterrent effect, but the primary goal of aprobationary order is more rehabilitative than it is denunciatory. [31] A conditional discharge should only be granted if the two tests described in R. v. Fallofield (1973), (BC CA),13 C.C.C. (2d) 450 (B.C.C.A.), can be met; in other words, that it is in the best interests of the defendant and it is not contrary to thepublic interest.

If a conditional discharge is granted, there is no notation made on the person's criminal record. [32] A suspended sentence is the penalty available in this case between what is being sought by the Crown and what is being soughtby defence counsel. A suspended sentence is meant to be exactly that, that the sentencing process is suspended while a probation orderis served. If the probation order is successfully served, the possibility of a jail sentence is removed.

If the probation order is breached,the defendant can be returned to the court to face breach of probation charges and/or to be sentenced for the original offence. In suchcircumstances as a suspended sentence, a notation is noted on the person's criminal record. [33] I have considered the facts of this case, the victim impact statement, the pre-sentence report, Mr.

F.'s personal circumstancesand his limited criminal record, the Criminal Code provisions, the case law provided by counsel and counsel's submissions, and I havealso considered the options open to the court in sentencing the defendant for this type of offence. [34] Having done so, I conclude that Mr. F.'s alcoholic haze was a large contributing factor to this offence and that he is at a low riskto reoffend sexually or otherwise and that the principles of denunciation and deterrence can be served appropriately without the necessity

of a jail sentence. [ 35 ] On the other hand, although a discharge would be in Mr. F.'s best interest, it would be, in my view, contrary to the public interest given the circumstances of this offence. The public is better served by Mr. F.'s actions attracting a criminal conviction. [ 36 ] Mr. F., please stand. [ 37 ] Sir, I am going to suspend the passing of sentence in this matter, and I am going to place you on two years of probation, 24 months. The terms of your probation order will be as follows, sir. [ 38 ] You shall keep the peace and be of good behaviour.

You shall appear before the court when required to do so by the court. You shall notify the court or the probation officer in advance of any change of your name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 39 ] 101P, Madam Clerk. You shall report in person to a probation officer no later than 4 p.m. today, March 11, 2014, at the probation office located at #101, 250 George Street, Prince George, British Columbia, and after that you shall report as and when directed by the probation officer. [ 40 ] 103P, Madam Clerk.

After your first reporting to the probation officer, further reporting may include reporting by telephone, at the discretion of the probation officer. [ 41 ] 105P, Madam Clerk. When first reporting to the probation officer, you shall inform him or her of your present residential address and phone number, and you shall not change your address or phone number at any time without first providing written notice to your probation officer. [ 42 ] 116P, Madam Clerk. You shall have no contact or communication, directly or indirectly, with Deborah Gough. [ 43 ] 121, Madam Clerk.

You shall not attend at or be within 25 metres of any place which you know to be the residence, school, or workplace of Deborah Gough. [ 44 ] 123, Madam Clerk. You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act, except as prescribed for you by a physician. [ 45 ] 124, Madam Clerk.

You shall not enter any liquor store, beer and wine store, bar, pub, lounge, or other business premises from which minors are excluded by the terms of their liquor licence. [ 46 ] The next two clauses I am going to just dictate, Madam Clerk, because they come out of the pre-sentence report. [ 47 ] By your consent, you are to attend, participate in, and complete individual and/or group therapy/counselling and/or programs and/or assessments for sex offenders as directed by and to the satisfaction of the supervisor. [ 48 ] Next clause, Madam Clerk.

You are to attend, participate in, and successfully complete any psychiatric or psychological assessments, counselling, or programming as may be directed by and to the satisfaction of the supervisor. And Madam Clerk, they are clauses 5 and 6 from the pre-sentence report with a couple of little grammatical changes. [ 49 ] THE CLERK: Thank you. [ 50 ] THE COURT: Number 147P, Madam Clerk. Under the direction and supervision of the supervisor -- pardon me. I should say probation officer, Madam Clerk, where I said supervisor before. This is a probation order. [ 51 ] 147P.

Under the direction and supervision of the probation officer, you shall successfully complete 30 hours of community work - I am going to break it down into two segments - of which 15 hours may be completed through activities involving charity fundraising with the H. O. G. So sir, you are going to do 30 hours of community work, 15 hours of which you can do through that, 15 hours of which they will direct you to do elsewhere. [ 52 ] 149, Madam Clerk. You must carry a copy of this probation order with you at all times when you are in public.

If you are stopped by a peace officer for any reason, you shall immediately provide the peace officer with a copy of this document without being requested to do so. [ 53 ] Those are the terms of the probation order I intend to impose, Ms. Elliot, unless there are other terms you think are necessary. [ 54 ] MS. ELLIOT: No, thank you, Your Honour. [ 55 ] THE COURT: Mr. Jenkins, any other terms you think might be of assistance to your client? [ 56 ] MR. JENKINS: No, Your Honour. Thank you. [ 57 ] THE COURT: Okay.

Now, the offence of sexual assault under s. 271 , by my reading, at the time that the offence occurred and given that the Crown is proceeding summarily, that is a s. 110 discretionary order. I am not going to make an order requiring Mr. F. not to be in possession of firearms. There is no indication of any violence here whatsoever, so that order is not going to be granted. However, it is also a primary DNA order. Therefore, sir, I am required to command you to provide a sample of your DNA. [ 58 ] Number 161, Madam Clerk.

Pursuant to s. 487.051 of the Criminal Code , I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances by a peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the DNA databank from A. A. F. by April 4, 2014.

[ 59 ] Number 163, Madam Clerk. Pursuant to s. 487.051(4) of the Criminal Code , I make a further order in Form 5.041 that you shall attend on or before April 4, 2014, between the hours of 9 a.m. and 4 p.m. at the RCMP detachment at 999 Brunswick Street, Prince George, British Columbia, and submit to the taking of those samples. [ 60 ] Now, my reading of the case law as provided by counsel and my understanding of the law in general is, given that I have imposed a suspended sentence with probation, there is a requirement at law that Mr. F. enter into a SOIRA order. However, Ms.

Elliot, I don't imagine you have an -- oh, Ms. Schroff has an order right here. [ 61 ] MR. JENKINS: Ms. Elliot, Your Honour, sent me up a photocopy of such an order, so. [ 62 ] THE COURT: Okay. So we have to have -- [ 63 ] MS. SCHROFF: That's what was provided. [ 64 ] THE COURT: -- Mr. F. sign it, Mr. Jenkins. Well, perhaps the original. Ms. Schroff has an original here, Mr. -- [ 65 ] MS. SCHROFF: It isn't the original, Your Honour. It's one -- [ 66 ] THE COURT: Oh, it's not? [ 67 ] MS. SCHROFF: -- that was forwarded to me by Ms. Elliot. [ 68 ] THE COURT: Okay. Well, one copy is as good as the next. Have Mr.

F. sign, then I will sign it. [ 69 ] Mr. F., the terms of that order will require you to register and appear before the RCMP detachment as they require you to do. I don't know how frequently that is. It is about once a year or once every two years. [ 70 ] Anything further, Ms. Elliot? [ 71 ] MS. ELLIOT: No, thank you, Your Honour. [ 72 ] THE COURT: Okay. Mr. F., there are documents that the clerk of the court has to prepare. It is 2 o'clock now.

Madam Clerk, would they ready by 3? [ 73 ] THE CLERK: They should be, yes. [ 74 ] THE COURT: If you go to the registry desk at 3 o'clock, sir, they will read you exactly what I have already read to you once. They will then direct you to go to the probation office which is just outside the front doors and off to the left through another door. They will again read everything to you to make sure you understand it, and then they will give you a

schedule for when they wish you to report. Any questions, sir? [ 75 ] THE ACCUSED: [No verbal response] [ 76 ] THE COURT: Anything further, Mr. Jenkins? [ 77 ] MR. JENKINS: No, Your Honour. [ 78 ] THE COURT: Anything further, Ms. Elliot? [ 79 ] MS. ELLIOT: No, thank you, Your Honour. (REASONS CONCLUDED)