R. v. R.L.K., 2019 BCPC 260

Citation: R. v. R.L.K. 2019 BCPC 260 Date: 20191106 File No: 98847-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.L.K. PUBLICATION BAN ON DISCLOSURE Pursuant to

Section 486.4(2) of the Criminal Code of Canada REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.L. DOREY Counsel for the Crown: R. Carot and A. Lee Counsel for the Defendant: P. Evans and S. Bose Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: September 30, 2018Date of Judgment: November 6, 2019 1. Introduction [1] The accused was convicted, after a three-day trial, of one count of sexual assault and one count of sexual interference contraryto s. 271 and s. 151(

b) of the Criminal Code. The victim of this crime was the 15 year-old daughter of the accused’s close friend andneighbour. [2] In this case, the Crown proceeded summarily. Pursuant to s. 151(b), the accused is subject to a mandatory minimum sentenceof 90 days in jail and a maximum sentence of two years. 2. Sentencing Positions of the Parties [3] The Crown’s position is that a jail sentence that exceeds the mandatory minimum sentence is warranted.

In this case, theCrown submits that the appropriate range is a period of 9 to 12 months imprisonment followed by a two-year period of probation. [4] The accused submits that a 90-day term of imprisonment would be a grossly disproportionate and harsh sentence in light of theaccused’s personal circumstances, his post-offence conduct, and the circumstances of the offence. He submits that a fit and proportionatesentence in his circumstances is a twelve-month conditional sentence, followed by a period of 18 months probation. [5] Conditional sentences are jail sentences served in the community under strict conditions.

Under s. 742.1 of the Criminal Code,a conditional sentence order, or CSO (“CSO”) cannot be imposed in the accused’s case in light of the 90-day mandatory minimumsentence prescribed in s. 151(

b) of the Criminal Code. [6] In R. v. Scofield, 2019 BCCA 3, our Court of Appeal recently held that the one year mandatory minimum sentence in s. 151(a)(where the Crown proceeds by indictment) violated s. 12 of the Canadian Charter of Rights and Freedoms and could not be saved by s.1. However, there has been no similar declaration made by the British Columbia Supreme Court or the British Columbia Court of AppealCourt that the mandatory minimum sentence in s. 151(

b) is of no force or effect. Thus, the 90-day mandatory minimum sentence is still“on the books”. [7] The accused submits that this mandatory minimum sentence stands in the way of proportionate sentence. He challenges theconstitutionality of this sentence on the ground that it constitutes cruel and unusual punishment contrary to s. 12 of the Charter. Inbringing this challenge, the accused seeks a formal finding of unconstitutionality in order for the Court to impose a CSO. 3.

The “two step” Process [8] The accused’s constitutional challenge to the 90-day mandatory minimum sentence involves a two-step process: see R. v. Nur,2015 SCC 15 , [2015] 1 SCR 773, at para 46. [9] First, I must determine what is a “fit and proportionate” sentence for the accused, in the absence of this provision, havingregard to the objectives and principles of sentencing in the Criminal Code.

Second, I must address whether the mandatory minimumrequires me to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. “If the answer is yes, themandatory minimum provision is inconsistent with s. 1 and will fall unless justified under s. 1 of the Charter”: R. v. Nur, at para 46. [10] If, on the other hand, I determine that a fit and proportionate sentence for the accused is at or in excess of the 90-day mandatoryminimum sentence, then under the principle of judicial economy, I have the discretion decline to consider the constitutionality ofs. 151(b): R. v.

Lloyd, 2016 SCC 13, paras. 4, 18, 20; and R. v. Alexander, 2019 BCCA 100, paras. 50 and 56. [11] The principle of judicial economy is explained by Supreme Court of Canada in Lloyd as follows: [18] To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimumprovision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squandertime and resources on matters they need not decide. But a formalistic approach should be avoided.

Thus, once the judge in this casedetermined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he couldhave declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issuearises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in thecase.

To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as acondition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-makingprocess. [12] As Crown counsel has ably pointed out in his written submission, this principle has been applied in several recent BritishColumbia Provincial Court cases dealing with mandatory minimum sentences relating to sexual offences against children including: R. v.Hathaway, 2018 BCPC 342, paras. 4 and 5; R. v.

Pope (September 27, 2018, BCPC, North Vancouver Registry 63464), paras. 8 and 9;R. v. Weeks, 2018 BCPC 275, para. 39; R. v. Shaw (November 29, 2017, BCPC, Prince George Registry 44566-4-C (Lloyd Decision)),paras. 3, 11-13; R. v. Shaw, 2018 BCPC 77 (Sentencing Decision), paras. 7-9); R. v. Tremblay, 2017 BCPC 375, paras 36-39; R. v. Sieber(May 9, 2017, BCPC, Abbotsford Registry 81820-1), para. 8. 4.

What is a Fit and Proportionate Sentence for the Accused? [13] I will now address what constitutes a proportionate sentence for the accused in the absence of the mandatory minimumsentence, having regard to the objectives and principles of sentencing in the Criminal Code.

A. Circumstances of the Offence [14] The circumstances of the offence are set out in my Reasons for Judgment. I provide the following

summary for the purposes ofsentencing. [15] At the time of the offence, M.C. was a 15 year-old high school student and the accused was 66 years of age. The accused was aclose family friend of M.C.’s father, and her family. They were also neighbours. [16] The offence took place in M.C.’s bedroom during the late evening on August 17, 2017 after M.C., her parents, aunt, uncle, andthe accused returned from a house party at the home of another family friend. [17] M.C. described the accused as “acting weird” and thought he was “really drunk” from his interaction with a group of teens atthe house party.

M.C. and another teen asked the accused for some marihuana at the party as a joke and were surprised he gave them amarihuana cigarette. [18] The accused testified that his “head was spinning” and he was “feeling the effect of the drink” on the drive back to the C.’shome after the party. [19] After arriving back at the C.’s house, the accused and M.C.’s father sat outside on the patio and M.C. went to her room andbegan a FaceTime conversation with her friend, M.M.H., on her cell phone. M.C. was sitting on her bed. [20] M.C.’s bedroom door was broken and had come off its hinges.

Without her bedroom door, M.C. could be seen by anyone fromthe hallway. [21] The accused testified in his own defence at trial. He testified that M.C. was a liar who had fabricated the allegations against himto avoid the consequences of her own misbehaviour after she had asked him for a marihuana cigarette earlier that evening. [22] M.C. testified that the accused entered her room twice that evening. When he entered her bedroom a second time, M.C. wassitting on her bed engaged in her FaceTime conversation with her friend M.M.H.

He approached her and told her she “owed him” (whichM.C. interpreted to mean for supplying the marihuana). The accused then put his hands down her shirt and pulled out one of her breastsfrom her bralette. The accused told her that if she wanted to, he could “eat her out”. [23] M.C. testified that the accused licked and kissed her breasts. She became frozen for a few seconds as this was happening butknew this was wrong. M.C. saw her friend’s face come back on the screen of her cell phone heard her say, “Stop”, at which point M.C.said, “No”, out loud to the accused.

He then stopped touching her and left the room. [24] I accepted M.C.’s testimony at trial and the corroborating testimony of her mother and her friend, M.M.H., and in so doing, Irejected the accused’s account of the events in question.

I further rejected the accused’s contention that M.C. had a motive to lie infabricating the allegations against him. [25] Overall, I did not find the accused to be a credible witness in my assessment of his testimony at trial. [26] I found as a fact that after entering M.C.’s bedroom the second time, the accused touched M.C.’s breasts for a sexual purposewith his hands and at least one of her breasts with his mouth. [27] On these facts, the accused was convicted on January 10, 2019 of one count of sexual assault and one count sexual interference.On the authority of R. v.

Kienapple (1974), (SCC), 15 C.C.C. (2d) 524 (S.C.C.), a conditional stay was entered on thesexual assault charge on Count 1 and a conviction was entered on Count 2, sexual interference, under s. 151(

b) of the Criminal Code. B. Circumstances of the Offender [28] The accused is currently 68 years of age. [29] The accused had a difficult upbringing. He was born in Fiji and was raised in poverty in a small village. He attained a grade 4education before leaving school to work. He worked in manual labour positions until age 17, when he began working as an automechanic. [30] The accused immigrated to Canada in 1976 after being sponsored by his wife. The accused worked as a precision engineer at[omitted for publication] in Vancouver, where he worked for 35 years and then retired.

The accused has lived in the Lower Mainlandwith his wife since their marriage in 1976. He and his wife own their own home in Maple Ridge. [31] Mr. and Mrs. K. have four adult children and six grandchildren ranging in ages 7 to 18 years. By all accounts, the accused has aclose and loving relationship with his wife and benefits from a strong relationship with his family. [32] The accused practices Roman Catholicism and the Hindu religion. Spirituality remains a big part of the accused’s life.

Heattends Mass and Temple regularly. [33] In 2013, the accused was involved in a motor vehicle accident in which he sustained a leg and back injury. The accused reportshe continues to suffer from chronic pain as a result of this accident and until recently had taken Tylenol 2 for pain management.

Hewears a leg brace and utilizes a cane to ambulate. [34] This is important because the accused’s explanation for his behaviour at the time of the offence hinges on his stated use ofalcohol and prescription medications to manage his chronic pain from this accident. [35] The accused has not been diagnosed with any pre-existing mental health conditions.

[ 36 ] The accused has no criminal record. [ 37 ] However, the accused entered into a peace bond in 2010 that pertained to an incident involving an adolescent family member at a wedding. When asked by Dr. Jack (the court appointed psychologist) about this incident, the accused, “stated he signed a “peace bond,” but also stated he believes he was tricked into doing so by his lawyer as he was not able to read the content of the document.” [ 38 ] The accused’s arrest and charges have led to significant emotional and financial cost for himself and his family.

He has come out of retirement to fund his counselling and the legal costs of his defence. He is isolated from his neighbours as a result of these charges. He cannot travel outside the country which prevents him seeing his aging sister and his newest grandchild. Most importantly, he lost the friendship of the C. family, which friendship he held very dearly. C. Attitude and Understanding of the Offence [ 39 ] The accused does not accept responsibility for the offence. [ 40 ] His denial is confirmed in three reports tendered at the sentencing hearing: a report prepared by the accused’s treating psychologist, Mr.

Gerry Bock, dated September 8, 2018 (likely misdated), a pre-sentence report prepared by Probation Officer Sonja Lejung, dated April 18, 2019, and a psychological pre-sentence report prepared by Dr. Lindsey Jack, a consulting psychologist with the Forensic Psychiatric Services Commission, dated April 23, 2019. [ 41 ] The accused informed Probation Officer Lejung that, he pled “not guilty”, he did not “wish to discuss the details of the offence”, but accepted the fact that he and the victim’s family “are no longer friends” (at p. 6). [ 42 ] The accused told Dr.

Jack during an interview on April 11, 2019 that: … [H]e is very upset regarding his current situation and they are “forcefully accusing me”. He stated, “I did not do anything … never harmed anybody.” (Report, at p. 4) [ 43 ] The accused remains shocked and upset by the allegations made by M.C. against him. He still maintains the view that M.C. was lying and continues to engage in victim blaming. Such victim blaming is evidenced by his explanation to Dr. Jack as to why M.C. made “such allegations against him”. [ 44 ] At p. 3 of her Report, Dr. Jack writes: ..

The accused responded “… jealousy … hatred.” When asked why the individuals involved might have those feelings toward him, he stated he has paid his house off, is retired and was doing well. He then spontaneously stated perhaps they were “… trying to make money out of me.” He then spontaneously noted perhaps they were racist as “their friends look at me differently.” When asked why such allegations would emerge now (given his lengthy positive connection with the victim’s father in particular), The accused stated he does not [sic] the answer.

He stated perhaps they were having problems within their own family... [ 45 ] According to Mr. Bock, the accused began consuming alcohol in 2014 following a motor vehicle accident as a, “coping mechanism for chronic pain, mixing this with other medications” (Bock Report, at p. 10). These medications are listed in Mr. Bock’s report and include Tylenol #2, Colchicine, Allopurinol, and Levothyroxine. These medications are prescribed variously for treatment and pain management of gout, arthritis, a thyroid condition, and his motor vehicle accident injuries. The noted side effects of these medications listed in Mr.

Bock’s Report include nausea, fatigue, confusion, and dizziness. [ 46 ] At page 6 of his Report, Mr. Bock states that the accused: … did not seem to be aware at the time he started drinking that this would cause him other issues, including mental confusion, dizziness, disorientation, stomach and digestive issues, sudden mood changes, vomiting, weakness, and fatigue. D. Victim Impact [ 47 ] The C. family had known the accused and his family since 1999 when they moved into the neighbourhood across the street from R.L.K.’s family.

The two families saw each other on a daily basis and became good friends. [ 48 ] In his testimony at trial, the accused described M.C. as being “like a granddaughter to him”. This speaks volumes as to the closeness of the relationship the accused had with the C. family. [ 49 ] The accused very much enjoyed his friendship with Mr. C. That friendship ended because of this offence. In his pre-sentence report, Mr. Bock writes: He described the relationship with Mr. [C.] and their family in positive terms and advised that the [C.] family were “like family” (his words).

In his view, the family and the [C.] family have enjoyed a supportive and mutually beneficial relationship since before [M.C.] was born. The two families have apparently enjoyed many special occasions and holiday gatherings together… (Bock Report, p. 4). [ 50 ] Sadly, this offence has had a profound impact on M.C. and her family. [ 51 ] Following the offence, M.C. was afraid to stay in her home. Her mother testified at trial that M.C. lived with family friends for a month until the C.’s found another place to live.

They eventually sold their home and moved away from the neighbourhood because of the effect the offence had on M.C. Mrs. C. further testified that the move was very hard on the family as they loved their neighbourhood and they enjoyed their friendship with the accused and his family. [ 52 ] Mrs. C. reports that M.C. has and continues to be “significantly affected” by the offence. M.C. has difficulty focusing at school; is less trusting; and is fearful of being taken advantage of by older adults. Mrs. C. reports that M.C. has decreased self-esteem, is angry

and frustrated with family and friends, and is anxious. M.C. acts out often and has physically hurt herself. [ 53 ] Mrs. C. states the family has been greatly affected by the trauma that M.C. has gone through as a result of the offence.

M.C. attends counselling on a weekly basis in Maple Ridge (which she dislikes) and her mother is actively looking to find another psychologist with more specialized training to help M.C. deal with her issues. [ 54 ] In her victim impact statement, M.C. writes that since the offence she is less trusting now, her friends are supportive but they do not understand what she have been going through adding that, “no one does”, and she feels very much alone. [ 55 ] The long-term impact of the offence on M.C. remains uncertain. E.

Pre-Sentence Reports [ 56 ] The accused has been released on bail conditions without incident or concerns since his arrest. [ 57 ] Shortly after being charged, the accused took the initiative to attend counselling which began in December 2017. To date, the accused has had 31 counselling sessions with Mr. Bock. The accused is committed to his treatment and attends Alcoholics Anonymous six days per week and has remained abstinent for over 10 months. [ 58 ] At page 5 of his Report, Mr.

Bock writes: Despite maintaining his innocence, he has been emotionally open and cooperative throughout the process, as we have discussed many topics of potential discomfort, he has received clinical treatment as if he was guilty of the offence he has been charged with . [emphasis added] [ 59 ] Mr. Bock formed the opinion that the accused has an “Alcohol Use Disorder”. The combination of alcohol and prescription medications “appear to have been significant contributing factors” to the offence in Mr. Bock’s opinion.

He further opined that the accused had limited insight into the way alcohol could affect him as confirmed by the following statement at p. 9 of his Report: The accused did not seem to have understood how medications can combine with alcohol to cause significant and unwanted side effects. [ 60 ] The accused is reported as being a good husband, and a kind and caring father and grandfather. This was evident from Ms. Lejung’s pre-sentence report and the character reference letter of support from the accused’s son.

Importantly, none of his family members interviewed expressed concern about his behaviour and he remains trusted to be around his grandchildren. [ 61 ] The accused’s wife and eldest daughter do not believe he committed the offence. They view the “allegations” against the accused as being “out of character”. In short, his family remain steadfast in his innocence. [ 62 ] Mr.

Bock states, at p. 7 of his report, that through counselling, the accused has discussed “a deep comprehension” of the need to continue to “actively honor and support pro-social values, being sure that no further incidents occur.” [ 63 ] Although the accused told Mr. Bock he “recognizes the serious nature of the crimes he has been charged with”, he still denies committing the offence. Mr.

Bock identifies the accused’s “limited sophistication” due to his limited education, and cultural factors related to differences in social boundaries, and his limited understanding of such due to his upbringing, as further context for the accused’s lack of insight into his behaviours. [ 64 ] The accused attributes alcohol and medications for his behaviour, for which he has made diligent efforts to seek treatment. He wishes to “make amends for the harm that he has unintentionally caused to others” through his commitment to treatment. This is reflected in pp. 6-7 of Mr.

Bock’s Report where the accused is stated to have: “… a belief that the incident was an isolated time in his life when he had become mentally out of control and in a delusional state because of the combination of alcohol and medications. He advised of being aware that choosing to take the medications and consuming alcohol were choices he made and that he is responsible for these choices, no matter the unintended outcomes.” [ 65 ] Dr. Jack, in her report, identifies inconsistencies in the accused’s presentation and statements to Mr. Bock. At p. 8 of her Report, Dr.

Jack writes: During the current interview, the accused denied committing the index offence and denied a history of problematic drinking. The accused’s presentation and statements during our interview are not consistent with the information provided about the accused by his counsellor.

In my opinion, some of the differences in presentation are risk-relevant including The accused’s degree of insight into potential risk factors, his openness to taking responsibility for his actions during the offence, and the extent to which he views his past alcohol use as problematic (although he was consistent in his reports of maintaining his current abstinence). The accused’s counsellor expressed the view that he made gains in each of these areas through counselling.

This is not evident during the current interview. … There are many aspects of the accused’s responses that are consistent… Including: he is managing any transient anxiety or low mood; his primary concerns relate to his legal situation; and he is connected to his family… Additionally, there have been no concerns about the accused’s contact with and relationships with children in the family. The accused also has consistently denied the marijuana use. [ 66 ] Dr. Jack assessed the accused’s risk for future sexual offending as being “low” relative to other individuals convicted of similar offences.

She noted the general risk factors associated with future sexual violence were absent. However, Dr. Jack felt that “some offence-specific risk factors” remained, including the dynamics of the offence (sexually touching a young person); his denial of the offence; his stance he is being unfairly treated, and his limited understanding and or limited discussion of his motivation and sexual

interest. Dr. Jack also formed the view that the accused’s current abstinence from alcohol was likely a “protective factor” as is hisengagement in Alcoholics Anonymous. [67] Dr. Jack opined, at p. 9 of her Report, that, “if the accused engages in future sexual offending, the most likely scenario would bea recurrence”. For this reason, Dr. Jack recommends specific risk management strategies including the Forensic Psychiatric Servicestreatment program and specific protective conditions in the community to minimize that risk.

Finally, also found that the accused’scurrent age may be a mitigating factor as there is a reduced risk of offending among older individuals. F. Relevant Sentencing Principles [68] I will now turn to a discussion of the relevant sentencing principles which apply in this case. [69] Sentencing is an individualized process and the task of the sentencing judge is a difficult one as there is no easy test or simpleformula to apply.

Through the application of a series of guiding principles and objectives set out in the Criminal Code, the sentencingjudge must determine a fit and just sentence having regard to the circumstances of the offence, the offender, and the victim as balancedagainst the individual needs of the offender, and the protection of the broader community at large. [70] The fundamental purpose and objective of sentencing, found in s. 718 is "to protect society and to contribute to respect for thelaw and maintenance of a just, peaceful, and safe society". [71] This purpose is achieved by “imposing just sanctions” that are the result of a fair and balanced assessment of one or more of thefollowing objectives: (

a) Denouncing unlawful conduct and its harm to victims; (

b) Deterrence, both general and specific; (

c) Separating offenders from society where necessary to protect the public; (

d) Assisting offenders in rehabilitation; (

e) Providing for reparation for harms done to victims; (

f) Promoting responsibility in offenders; and (

g) Acknowledging the impact of the harm done to the victims or the community. [72] Sections 718.1 and 718.2 provide a series of guiding principles to assist the judge in tailoring a fit and just sentence that willgive meaningful effect to one or more of the sentencing objectives found in s. 718. [73]

Section 718.1 sets out the principle of proportionality and states that "a sentence must be proportionate to the gravity of theoffence and the degree of responsibility of the offender". [74] Sexual interference is a crime of specific intent, requiring proof beyond a reasonable doubt that the touching of the victim wasfor a sexual purpose. Regardless of the nature of the conduct involved, the gravity of the offence flows from the fact that the victim ofthe offence is a child.

Thus, the offence of sexual interference is, by its very nature, a serious criminal offence against a child regardlessof whether the Crown proceeds summarily or by indictment. [75] Our Courts have long recognized the importance of the need to protect children from harm caused by sexual offenders throughsentencing. In R. v. Maxmenko, 2015 BCSC 2224, at para. 19, the Court stated: A third point or theme that emerges from the relevant case law is the need to protect children from sexual offenders, and the recognitionthat these offences have the prospect of causing lasting harm to their victims.

This third point has been recognized and emphasized formany years. Thus, in R. v. Hawkes (1987), (NS CA), 81 N.S.R. (2d) 156 (C.A.) Matthews J.A. said, at para. 6: We have also commented upon the fact that charges of sexual assault are before us with "alarming frequency". We are powerless toprevent crimes but we do have the power and the duty to impose fit and proper sentences. Sexual abuse of near helpless children byadults, upon whom they should be able to rely for protection, should incur sentences which hopefully deter the perpetrator and others soinclined and demonstrate society's revulsion of such conduct.

Children must be protected; deterrence must be both specific and general,with emphasis on the general aspect of deterrence. [76] Parliament has also made it clear that protection of children from sexual offenders is a core value in Canadian society. This isreflected in the mandatory minimum sentence for this offence, and by requiring that this offence be both “an aggravating factor insentencing and the subject of a sentence which primarily addresses denunciation and deterrence”: see, R. v.

Allen, 2012 BCCA 377, atpara. 60. [77] Sections 718.01 expressly provides: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. [78]

Section 718.2 directs that a sentence should be increased or reduced to account for any relevant aggravating or mitigatingcircumstances and further directs that if the offender, in committing the offence, abused a position of trust or authority in relation to thevictim, that shall be deemed to be aggravating circumstances. It states:

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 theoffence or the offender, and, without limiting the generality of the foregoing, … (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years. … shall be deemed to be aggravating circumstances. [79]

Section 718.2 circumscribes the discretion of a sentencing judge in applying the principles and objectives of sentencing wherethe victim is a child. The sentencing judge is thus required to give “primary consideration and importance” to the sentencing objectivesof denunciation and deterrence. To elevate other sentencing principles on the same footing in sentencing for the sexual abuse of a child isan error in law: R. v. Allen, supra, at paras. 51 and 52. [80] Accordingly, the primary sentencing objectives in this case are denunciation and deterrence and the secondary objective isrehabilitation. G.

Denunciation and Deterrence [81] What is denunciation? Denunciation communicates a collective statement of society’s condemnation of the offender’sbehaviour. Chief Justice Lamer in the case of R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81, describes thepurpose and objectives of denunciation as follows: … The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law ... A sentence whichexpresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negativeconsequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set ofcommunal values shared by all Canadians as expressed by the Criminal Code. [82] The objective of general deterrence often goes hand in hand with denunciation.

General deterrence is based on the belief thatthe sentence imposed will discourage society (other potential offenders) from engaging in the offending behaviour and educate themabout the consequences of choosing a life of crime. [83] The objective of specific deterrence is to discourage the individual offender from committing future crime by remindinghim/her of the consequences that will arise from the sentence imposed. If specific deterrence is the primary goal, greater emphasis isplaced on the individual, considering the offender’s record, attitude, motivation and prospects of rehabilitation. [84] In R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, at para. 103, the Supreme Court of Canada confirmed the criticalrole of deterrence in sentencing but cautioned against placing too much emphasis on it when deciding between a conditional sentence andincarceration.

While a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration, a conditionalsentence “can still provide a significant amount of denunciation”. [85] However, at para. 114, the Supreme Court also stated: Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravatingcircumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goalsmight be achieved by a conditional sentence. H.

Statutory Requirements for a Conditional Sentence Order [86] As stated at the outset of these reasons, the Crown submits that the appropriate sentence for the accused is a jail sentence in therange of 9 to 12 months imprisonment followed by a two-year period of probation. [87] The accused, on the other hand, submits there are exceptional circumstances which would justify a 12 month CSO, followed bya period of 18 months probation. [88] In order to sentence an offender to a conditional sentence, the preconditions set out in Proulx must be met, namely: the offendermust not be convicted of an offence that carries a mandatory minium sentence; the Court must impose a sentence of imprisonment of lessthan two years; the safety of the community must not be endangered; and a conditional sentence must be consistent with the objectives ofsentencing found in ss. 718 to 718.2 of the Criminal Code. [89] There is “no presumption” in favour of a conditional sentence even if the preconditions are met: R. v.

Callow, 2019 BCSC 242,at para. 37, citing Proulx, at paras. 79 and 85; and R. v. F.E.H, 2015 BCSC 175, at para. 46. [90] The prevailing view in recent jurisprudence is that “conditional sentences will rarely satisfy the primary sentencing objectivesof deterrence and denunciation in cases involving sexual touching of vulnerable children especially where abuse of trust or authority isinvolved”: R. v. Scofield, supra, at para. 70; R. v. Horswill, 2019 BCCA 2, at paras. 15-20. [91] Accordingly, those who commit the offence of sexual interference generally will be sentenced to a period of incarceration.

[ 92 ] Indeed, in Scofield , Harris J.A. stated: [75] In most circumstances, a s. 151 offence will lead to incarceration. Indeed, very often the term of imprisonment will exceed the mandatory minimum. In many respects, the mandatory minimum is unnecessary as courts already impose considerably longer sentences in circumstances where young children are sexually exploited by adults in positions of trust or authority. [ 93 ] A CSO will likely only be available “in exceptional circumstances”, after a consideration of all of the pertinent circumstances: R. v.

Horswill , at para.15. [ 94 ] The factors that contribute to a finding of exceptional circumstances include : the length of time since the offence, whether the offence has been repeated, whether the offender is a paedophile, whether there was particular violence or threats, whether there was physical harm done, the good character of the offender, whether the offender has support in the community, the age of the offender, the likelihood that the offender will re-offend, and the need for specific deterrence: R. v.

Callow , supra , at para. 41 . [ 95 ] For example, in Scofield , the sentencing judge found the presence of exceptional circumstances to justify a six months CSO due to Mr. Scofield’s severe cognitive impairments and lack of a prior criminal record. The accused was 22 years of age. He pled guilty to two counts of sexual interference for having engaged in consensual unprotected sexual intercourse with two fifteen year-old girls. The sentencing judge found that because of Mr. Scofield’s unique and particular circumstances, his moral culpability for the offences was significantly diminished.

The one-year mandatory minimum sentence under s. 151 (

a) was found to be contrary to s. 12 of the Charter because it was grossly disproportionate to a six-month conditional sentence which the Court found appropriate for Mr. Scofield. [ 96 ] The majority of the Court of Appeal confirmed the sentencing judge’s finding that the one year mandatory minimum sentence offended s. 12 of the Charter but found the sentencing judge erred in treating certain factors as mitigating. Nevertheless, the majority held that the error went only to the length of and not the appropriateness of the CSO.

The Court of Appeal then increased the CSO from six to 12 months. [ 97 ] The key finding in Scofield for the purposes of the accused’s sentencing, was the sentencing judge’s finding that given Mr. Scofield’s cognitive impairments, a prison sentence would be unduly harsh. At para. 106 of the reasons for sentence (quoted at para. 26 in the majority decision), the judge reasoned: Mr. Scofield would not do well in an institutional setting and it would likely inhibit his rehabilitative potential. It would be difficult and disruptive for him and he would likely be subjected to hostility from other inmates.

I must balance the impact of a period of incarceration against the impact of keeping him in a stable, supportive environment where he is under the supervision of his mother and partner and in a role that requires him to take on some parenting responsibilities. [ 98 ] The accused does not present with any cognitive or mental health impairments. However, he submits that there are “exceptional circumstances” present in his case which justify a CSO.

His reasons are threefold. [ 99 ] First, the accused has demonstrated a strong commitment to rehabilitation through his proactive efforts to seek and attend psychological and substance abuse counselling. He submits his therapeutic relationship with Mr.

Bock would be disrupted by a jail sentence. [ 100 ] Second, the accused does not present a safety risk to the community as demonstrated by his lack of a criminal record coupled with the fact has complied with strict bail conditions for over two years without incident. [ 101 ] Third, drawing upon the sentencing judge’s reasoning in Scofield , it is submitted that the accused’s chronic pain is better managed and monitored in the community under a strict CSO “in the comfort of his home with the support of his family and ready access to medical professionals” than in jail where medical and treatment services remain uncertain. [ 102 ] In sum, the accused submits that the “exceptional circumstances” requirement is met for these reasons and that the objectives of denunciation and deterrence can be achieved with a 12 month CSO followed by an 18 month probation order. [ 103 ] The following decisions cited by Defence counsel in their written and oral submissions are those I consider to be most relevant to this submission: [ 104 ] In R. v.

CVEB , 2019 BCPC 118 , the accused was 79 years of age and had no prior criminal record at the time of the offence and was convicted of sexually assaulting a 10-year old child. The complainant was a neighbour who had come over to the accused’s home to help him retrieve an item that was stuck under the refrigerator. The accused was home alone and had been drinking.

He hugged the complainant, cupped his hands over her breasts on the outside of her clothing, and briefly touched her vagina on the outside of her clothing. [ 105 ] The Court found the accused was suffering from a major cognitive disorder at the time of the offence and that his cognitive impairment was causally connected to his offending behaviour. The Court also found that the accused had other significant health problems that, in addition to his diminished and declining cognitive abilities, would make it difficult for him and for correctional authorities to manage his conditions if incarcerated.

The Court declined to apply the six-month mandatory minimum sentence and instead sentenced the accused to an eight month CSO followed by 18 months probation. [ 106 ] In R. v. Callow , supra , the 79-year old Aboriginal offender pled guilty to sexual interference. The complainant was the 10-year old granddaughter of his common law partner. The offence consisted of “one opportunistic act” of rubbing the victim’s buttocks and vagina over top and then underneath her underwear for five to ten minutes as the victim cuddled between both grandparents in their bed. The accused had Parkinson’s disease.

By the time of sentencing, the accused developed significant cognitive impairments and experienced hallucinations due to medication prescribed to treat this disease. In mitigation, the Court considered the accused’s guilty plea, coupled with the fact that he expressed his remorse “immediately” and “repeatedly” to police and various health care professionals over the years. The accused was found to be insightful of the harm he caused. The Court also carefully considered the accused’s

Aboriginal heritage and his difficult family upbringing in deciding whether a non-custodial sentence was justified. [107] The Court found “exceptional circumstances” were present in this case to justify a CSO. At para. 62, Dillon J. stated: At 79 years of age and with significant health issues that require constant medical monitoring and treatment, Mr. Callow is likely tounduly suffer if sent to prison. He appears to suffer from increasing cognitive impairment and symptoms of Parkinson’s disease. He isbeing treated for kidney tumors. [108] Mr.

Callow was sentenced to a 15 month CSO followed by a 12 month probation order. [109] In light of these authorities, Defence counsel submits that a prison sentence would be unduly harsh for the accused given hisadvanced age, his lack of a criminal record, and his ongoing need for counselling and medical management of his chronic painconditions. [110] The Crown submits there are no exceptional circumstances in the accused’s case, as demonstrated by his lack of insight anddenial of the offence. [111] Further, the Crown submits there is no indication in the evidence that he is in poor health and that incarceration would have asevere effect on him.

I note the absence of medical evidence before the Court as to the nature, treatment, and progress of the accused’smotor vehicle accident injuries or evidence of whether he has any functional impairments or limitations arising from these injuries whichcould not be accommodated in a prison setting. [112] In R. v.

Potts, 2011 BCCA 9, at para. 85, our Court of Appeal held that an offender's health will rarely have an impact on thesentence, and only when the evidence is clear and convincing: It is relatively rare for the health of an offender to be taken into account in sentencing but there are cases in which an offender's healthmay be relevant. Although an offender's health status may be relevant at sentencing, in general these matters are best considered as partof the overall circumstances of the offender, rather than as a basis for deducting time from an otherwise appropriate sentence.

There arecases in which an otherwise fit sentence may be reduced on compassionate grounds, but such reduction must be based on current, clearand convincing evidence: see R. v. Shah (1994), (BC CA), 94 C.C.C. (3d) 45 (B.C.C.A.); R. v. Shahnawaz (2000), (ON CA), 51 O.R. (3d) 29, 149 C.C.C. (3d) 97 (C.A.) at paras. 30-34; R. v. Alcius, 2007 QCCA 213 at para. 53. I. Sentencing Range for this Offence [113] The Crowns submits that a jail sentence is warranted to achieve the sentencing objectives of denunciation and deterrence and toprotect the most vulnerable members of our society. [114]

Section 718.2(

b) provides that a sentence should be similar to sentences imposed on similar offenders for offences committed insimilar circumstances. [115] The applicable sentencing range for this offence is a period of nine to 18 months incarceration.

Sentences within that higher endof this range are assigned to the more egregious cases of sexual interference involving “an abuse of trust or authority, a stark difference inage between the accused and the complainant, or evidence of exploitation, violence, or threat”: Scofield, supra, at paras. 92 and 95. [116] The Crown relies on the following cases in support of this sentencing range: [117] The first case is R. v. E.M.Q., 2015 BCSC 201. In this case, the 14 year-old-complainant, S.C., was hired to babysit theaccused’s daughter. She fell asleep on the couch in the living room of the residence.

E.M.Q., who was intoxicated, returned to theresidence, woke up the complainant attempted to kiss her. He then wrestled with the complainant and attempted to touch her breasts andvagina. She resisted but E.M.Q. was able to touch her pelvic area, above her vagina, over her clothing. The accused was 21 years old atthe time of the offence, Aboriginal, had issues with alcohol, and was on an undertaking to abstain from alcohol. The Crown proceeded inthis case by indictment and the accused was convicted at trial.

The trial judge found that E.M.Q. did not accept responsibility for hisactions. [118] At paras. 89-90, and 174 of his sentencing decision, Pearlman J. found that a nine month custodial sentence would have beenappropriate absent the mandatory minimum. However, Pearlman J. did not find that the minimum violated s.12 of the Charter.

Heimposed a sentence of 13 months followed by two years of probation, holding, at para. 90, that while “the circumstances of the offenceand the nature of the touching place this case near the low end of the spectrum of conduct constituting sexual interference”, there werefew mitigating factors, and found the accused “is not the ‘very best offender’”. [119] In R. v. Savage, 2011 ONCA 107, the accused was the complainant’s grandmother’s partner. The complainant was a nine year-old developmentally delayed child.

The offence took place when the accused was babysitting the complainant in their home and theoffending behaviour involved the touching of the complainant’s breasts. He was convicted of sexual interference and sentenced to 18months in jail and three years of probation. The Court of Appeal upheld the sentence noting the aggravating factors of the accused’sbreach of trust and his high-risk to re-offend. The accused also had a history of abusing children with whom he was in a position of trust. [120] In R. v. Simmons, 2010 ONSC 5894, the accused was the complainant’s 77-year-old piano teacher.

Over the course of threelessons, he rubbed the complainant’s thigh, kissed his cheek, and kissed him on the lips. The accused entered a very early guilty plea tothe charge of sexual interference and proactively sought out treatment. The Court heard medical evidence from the accused’s physicianand found the accused to be in frail condition with multiple health issues. He received six months jail, followed by three years ofprobation. [121] In R. v. Maxmenko, supra, the 60-year-old accused pled guilty to the sexual touching of his 12 year-old grandniece at hergrandmother’s home.

During horseplay with the complainant, the accused placed his hand under her shirt and touched her bare breast.

She was uncomfortable and left to go to her room. The accused followed where he again touched her under her shirt on her back and thenher bare breasts. He also put his hand down her pants and touched her bare buttocks, and then lifted her shirt over her breasts. When heryoung siblings entered the room, the complainant left the room and went to a different room. He followed her into that room, pushed heronto the bed, and took a photo of her while she was fully clothed. A relationship of trust was found by the Court given his familialrelationship with the complainant.

The accused was sentenced to six months jail followed by 18 months of probation. [122] In R. v. A.B., 2013 SKQB 56, the 33-year-old accused was convicted of sexual interference and breach of an undertaking. Theaccused was under a no-contact condition regarding the 12-year-old complainant’s aunt. At the aunt’s home, the offender crawled intothe complainant’s bedroom and rubbed her back, shoulders, buttocks, and feet over the blanket she had covering her. The complainantpushed him away and left her bedroom.

She went to sit on the couch in the living room where the accused followed her, sat beside her,and hugged her. He also kissed her hand, cheek, and neck. The offender was assessed as a high risk to reoffend and did not acceptresponsibility for his actions. At the time A.B. was sentenced, the mandatory minimum for a s.151 offence proceeded summarily, was 45days. The accused had a criminal record although not for sexual offences and had not served any jail time. He received a nine months jailsentence for sexual interference and 60 days’ jail for the breach of condition, to be served concurrently. J.

Mitigating and Aggravating Factors [123] The mitigating factors I find in this case are: the accused’s age and lack of prior criminal record, his strong family support, andthe fact he has been released on bail conditions for more than two years without incident.

Most importantly, the accused demonstrates asolid commitment to rehabilitation by proactively seeking counselling and by abstaining from alcohol for over 10 months. [124] I will now turn a consideration of the aggravating factors. [125] The aggravating factors I find are: the age of the victim, the negative impact the offence has had on M.C. and her family, whichresulted in the selling the family home and moving away from their neighbourhood. [126] The accused’s denial of the offence and his “victim blaming” is indicative of his lack of insight and its impact on the victim andher family, which I further find to be an aggravating factor in this case. [127] Although the accused described himself in his testimony as being a close friend of Mr.

C. and viewed himself like a grandfatherto M.C., he was not a “person in authority” or viewed as such by M.C. on the facts I have found. I do not find his relationship with thecomplainant rose to the same level of trust as contemplated by s. 718.2 at the material time of this offence: See, R. v. Poncelet, 2008BCSC 202 , [2008] BCJ No. 289. Therefore, I agree with Defence counsel that the elements of a trust relationship are not met inthis case. 5.

Sentencing Decision [128] The accused’s denial of the offence is clearly rooted in the belief that, at the material time, he was “mentally out of control” and“confused” due to the combination of consuming alcohol and prescription medications to manage his chronic pain. While this mayexplain the accused’s behaviour that evening, it does not excuse it, nor does it reduce his moral culpability: R. v.

Roach, 2012 B.C.J.2858, at paras. 36-37. [129] In my opinion, the offence was a single, brief, impulsive, and opportunistic act that occurred in the bedroom of the complainant– a place which is supposed to be a safe and secure place for children.

In committing this offence, the accused took advantage of hisfriendship with the C. family. [130] I am also satisfied on a careful consideration of the evidence that the offending behaviour itself was at the lower end of the broadspectrum of behaviours which encompass the charge of sexual interference. [131] I am further satisfied that the accused is at a low risk of re-offending and that he has good prospects for rehabilitation.

I haveconcluded there are no safety risks which would cause this Court concern if the accused continued to have contact with hisgrandchildren. [132] I have concluded on the evidence before me that there are no exceptional or mitigating circumstances which would serve tojustify a CSO in this particular case, especially light of the accused’s denial of the offence. [133] Mr.

K., would you please stand: [134] For the reasons I have discussed above, I have concluded that a just and fit sentence is a nine month jail sentence to be followedby a period of 18 months probation. [135] Having determined that a proportionate sentence for the accused is above the 90 day mandatory minimum sentence in s. 151(b),and in applying the principle of judicial economy enunciated in R. v. Lloyd, supra, I decline to engage in the constitutional analysis unders. 12 of the Charter. [136] Pursuant to

section 161 of the Criminal Code, the accused is prohibited for a period of three year following his release fromcustody from being alone in the presence of persons under the age of 16 years without another adult 19 years of age or over present. Thisprohibition will not apply to the accused’s grandchildren, as I am satisfied on the evidence me that will not pose a safety risk to them. 6. Probation Terms [137] Following Mr. K.’s release from Provincial custody, you will commence an 18 month term of probation and the followingconditions will attach:

1. Within 48 hours of your release from custody, you must report to the probation office located at 2610 Mary Hill Road, in Port Coquitlam, British Columbia and thereafter you must report as directed by your probation officer. 2. You must keep the peace and be of good behaviour. 3. You must appear before the Court when required to do so by the Court. 4. You must notify the Court or your probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of any change of employment or occupation. 5.

You must reside in a residence approved by your probation officer and not change your place of residence without the prior written approval of your probation officer. 6. You must not possess or consume any alcohol, drugs, or any other intoxicating substance, except in accordance with a medical prescription. 7. You must attend, at the direction of your probation officer, for psychiatric intake, assessment, counselling, or treatment program through Forensic Psychiatric Services. 8. You must have no contact or communication directly or indirectly with M.C. or the members of her immediate family. 9.

You must not go to or be within 100 metres of any known residence, school, or place of education, place of worship, or workplace of M.C. or her immediate family. 10. Except for your grandchildren and members of your immediate or extended family, you must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know to be or who reasonably appears to be under the age of 16 years. 11.

You must not go to any public park, public swimming area, or community centre, school, or playground where persons under the age of 16 years are present, or who can reasonably be expected to be present, unless you are in the presence of an adult person over 19 years of age. 7. Ancillary Orders [ 138 ] Count two on Information 98847 is a primary designated offence. Pursuant to

section 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purposes of registration in the DNA national databank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples. [ 139 ] At the application of defence counsel, I have granted a publication ban pursuant to s. 486.4(2) . [ 140 ] Pursuant to s. 490.012, Mr. K. is required to comply with the Sex Offender Information Registration Act for a period of 10 years. ____________________________ The Honourable Judge D.L. Dorey Provincial Court of British Columbia