R. v. S.D.R. Date:, 2012 BCPC 414

Citation: R. v. S.D.R. Date: 20121017 2012 BCPC 0414 File No: BB100740 Registry: Bella Bella IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION 486.4(1) C.C.C. REGINA v. S.D.R. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE WINGHAM Counsel for the Crown: L. Herron Counsel for the Defendant: D. Carpentier Place of Hearing: Klemtu, B.C. Date of Hearing: October 17, 2012

Date of Judgment: October 17, 2012 [ 1 ] THE COURT: Mr. R. has pled guilty to sexual assault of "J.R.", who I will refer to as the complainant throughout these reasons. [ 2 ] The Crown seeks a custodial jail sentence of nine to 12 months. The Crown says that a real jail sentence - that means incarceration as opposed to a conditional sentence order - is necessary to address the need for denunciation and deterrence and, in particular, general deterrence.

That means, as put by the Crown, a message to the community that sexual assaults should not be tolerated or condoned, that there are consequences to sexual assaults. [ 3 ] Counsel for Mr. R. does not disagree that a jail sentence is appropriate, but suggests and submits that it should be served and can be served in the community under the terms of a conditional sentence order. [ 4 ] There is some dispute about the circumstances, but the offence to which Mr. R. has pled guilty relates to two incidents involving a 13-year-old victim. [ 5 ] The first incident occurred on August 24, 2010.

The accused was driving around Klemtu in his van with some friends and the complainant. After dropping off everyone, he rubbed the complainant's leg and, although the Crown did not refer to this today, according to the report, he told him he would let him drive if he gave him a blowjob. The complainant said no and got out of the van. Those are the allegations. [ 6 ] A second incident occurred on August 27, 2010. Again, the accused and the complainant were in his van. It was about 5:00 a.m. The complainant had fallen asleep according to the Crown. Mr.

R. says that the complainant was not asleep, he was awake and initiated it. In any event, the complainant's pants were down, his underwear was pulled down slightly, and his penis was showing. The Crown says that there was also touching that occurred on that occasion. According to the report, the complainant reacted by punching the accused and getting out of the van and walking home. [ 7 ] When this eventually came to the attention of the police about six months later Mr.

R. admitted his involvement and that he knew that the complainant was too young at the time for what occurred. [ 8 ] A Pre-Sentence Report and a psychological assessment were prepared for this sentencing. I have also had the benefit of reading a comprehensive Gladue report prepared by Laura Matthews. [ 9 ] Mr. R. is 27 years old currently. He is a member of the Kitasoo First Nation and has lived his life in Klemtu. He was raised by his grandparents, I am told today, from birth, but the reports indicate from the time he was two years old.

But in any event, he was virtually raised his whole life by his grandparents. He currently lives with his grandmother. His grandfather is deceased. His mother died in 1994 in childbirth. His father, D.R., lives in a room in the same house as the accused, but is described in the reports as an alcoholic who is abusive when he drinks. [ 10 ] The accused completed schooling to approximately Grade 10 and half of Grade 11. He has worked at various jobs including work at a fish plant, a water treatment plant, and as a janitor.

He has also served as a guide at the Big House taking over from his grandfather when his grandfather died. [ 11 ] Dr. Kreklewitz is the psychologist who prepared the psychological assessment. She expressed concern that the accused had minimized his behaviour. At page 8 of her report, she concluded that Mr. R.'s risk for sexual offending was to be considered to fall within the moderate range. Issue was taken with that by Ms. Carpentier based on the context of the report. [ 12 ] Also, at page 9 of the report, Dr. Krecklewitz wrote [as read in]: With regard to his index offence, Mr.

R. accepted little responsibility for the offence and greatly minimized his behaviour. Indeed, he claimed that the victim initiated the sexual contact and invited Mr. R. to touch him in a sexual manner. He displayed minimal insight into his actions and was unable to explain the motivation for his behaviour or his victim selection. He attempted to rationalize behaviour and reported he was not thinking right at the time of the offence due to depression following his grandfather's death seven months prior to the offence.

Particularly salient was the comment that he would not commit a sexual offence in the future because, "It is scary going to court and has put a lot of stress on me." In contrast, he made no reference to the legal or moral wrongfulness of his actions nor to the harm he had inflicted on his victim. [ 13 ] I will pause to say that that is very different from what is being presented by Mr. R. today. Through his counsel, he expresses empathy for the victim and he expresses what I consider from observing him today heartfelt remorse for what he did and his willingness to apologize and try to make amends.

There are recommendations made in the report which I will come back to. [ 14 ] The Gladue report delves much deeper into Mr. R.'s background. The persons interviewed by the author, Laura Matthews, describe the accused in terms that can be described as caring and sheds further light on his family background. Lori Gray, the homecare nurse in Klemtu, described how for three years before his grandfather's death, the accused administered dialysis treatments to him four times per day enabling his grandfather to stay in his home and die peacefully there with his family around him. She also described Mr.

R. as having taken on the role of caregiver to his grandmother who has very limited vision. I will note that his grandmother and one of his uncles are present in court today and express their support and their caring or love to Mr. R. [ 15 ] The accused has and continues to suffer from physical and emotional abuse at the hands of his father, particularly when his father is intoxicated. This is particularly difficult and stressful for the accused as his father lives in the same house as him, in fact, lives

in a bedroom right next to his. [ 16 ] In the Gladue report at page 8, Ms. Matthews writes [as read in]: It was explained to the writer that S.'s bedroom is located in the basement of the home next to the bedroom of his father, D. Family members and community professionals alike concur that S. has suffered much abuse in the basement of his home at the hand of his father. Ms. Gray and Ms. Djamtorki expressed that this situation is very stressful for S. because in a town such as Klemtu when there is trouble in someone's home, there is virtually nowhere to escape to.

Further, S. plays the caregiver role to his grandmother and is not willing to leave her alone. [ 17 ] In addition to providing more detailed social and family background, the Gladue report provides important context to Mr. R.'s offending behaviour and his attitude towards his offence and its consequences for the victim. The social problems facing the Kitasoo people are detailed at pages 11 and 12 of the report. Again, I will quote from the report [as read in]: S. was born and raised in Klemtu. It is the home of the Kitasoo First Nation located on British Columbia's central coast.

Klemtu's geography is beautiful, but isolated, accessible only by air or water. Because of its location, Klemtu and its community members face tremendous challenges in everyday life. According to Darren Edgar, chief councillor of the Kitasoo First Nation, the rampant social issues plaguing the community of Klemtu is the biggest hurdle to overcome. The lack of resources, substandard education, lack of consisted [sic] RCMP attendance, lack of motivation amongst the community members, and the normalization of every type of abuse are but a few of the challenges the band council are working to address.

When asked what resources are available to community members, Edgar answered that, "We don't have nearly enough and what we do have is not consistent." For example, the counselling services, he said, are in Klemtu on a rotation leaving the community without that very necessary resource sometimes for two weeks in a row. This, he said, is very detrimental to those who are looking to improve their lives. Second, the education system is also lacking in consistency.

The writer was told it is not uncommon for the teaching staff to be 10 at the start of the school year, but that they are sometimes lucky to have five remaining by Christmas break. As well, because Klemtu is not able to offer the British Columbia Dogwood Certificate upon graduation, it makes it very difficult for students to further their education or better their lives. The presence of the RCMP or lack of it is also a huge problem according to Edgar. Edgar stated that the community sets a calendar around the RCMP

schedule to accommodate drug and alcohol sales. A further complication is the band bylaws which are in place in Klemtu. Edgar said that while well intentioned, they have no one to enforce those bylaws such as bootlegging and abuses that occur. In this, he said, the RCMP when they are present have their hands tied because they are not authorized to enforce the bylaws leaving the community to fend for themselves. Ms. Grey stated that much of the time Klemtu is basically a lawless land. Apparently, the Kitasoo Band did attempt to instil a tribal police system, but it failed for various reasons.

Edgar said that in a community where everyone is related, it is impossible to have family members enforcing family members so the system failed. Edgar explained that things are slowly beginning to change for the better and he has hope for the future. In the recent past, the unemployment rate was 80 percent, says Edgar. It has turned around to 80 percent employed. This is largely due to the seafood plant that the Kitasoo Nation launched in partnership with an international seafood company.

The only problem, said Edgar, is that it takes 30 people to run the plant and that if six people do not show up due to substance abuse issues, the plant cannot function and the 14 dedicated employees get sent home. This is causing contention amongst the workers as well as the band and the international seafood company. Edgar stated that, as a result, the fish is sent to Prince Rupert to be processed which is a cost to everyone. A very positive change that is occurring in Klemtu is the resurgence of the traditional culture.

Edgar believes that the erection of the big house has done a lot in this respect for the community. He noted that the young generation are coming out to traditional ceremonies and participating enthusiastically, whereas 10 years ago, you would not have seen such interest. [ 18 ] The report also describes the impact that the residential school system has had on the community and on Mr. R.

At page 13, the author writes [as read in]: Klemtu is a community which exhibits the direct effects of intergenerational colonization including but not limited to rampant substance, physical, verbal, sexual abuse, and poverty, not to mention an extreme lack of resources to address these social ills. S. is a product of the multigenerational impact of residential school outfall. S.'s paternal grandfather spent a considerable part of his youth at the Alert Bay Indian Residential School. It is reported that he endured years of sexual, physical, and emotional abuse during his stay there.

S. reported that as a result of this, during his grandparents' early lives together, his grandfather abused alcohol to dull the memories of his residential school experience. G. expressed to the writer that it was during this time that his father was abusive under the influence of alcohol to his three sons, G., D., and G. S. went on to say that his father's abusive experience with his grandfather during this time resulted in his father repeating the cycle of abuse with him. G., G., and D. Jr. all concurred with this.

S. has personally experienced and indeed has come to normalize alcoholism, violence, and verbal abuse as a youth and still does to this day. Although he did not report sexual abuse personally, the writer was told it continues to be a problem within the community. [ 19 ] Mr. R. has expressed remorse for his actions. He did so today in court. He also is reported to have expressed remorse in the community. At page 14 of the report, there is a reference, which was referred to today in submissions, that Mr.

R. has had communication with the mother of the victim as to whether or not the family of the victim would be open to a healing circle where he could publicly apologize and, according to the report and from what I have heard today in submissions, the family is receptive to that, although the victim himself may not be. [ 20 ] Since this incident has occurred, Mr. R. has been attending counselling. I am referring now page 14 of the report [as read in]: S. has been attending counselling with Ms. McGuckin over the past three years to talk about his trauma and deal with his alcohol consumption.

S. also told the writer that he requested that he be referred to a residential treatment program to address his traumatic upbringing and related alcohol use. S. informed the writer that when the counsellors are not in Klemtu, he accesses the counsel of the lay minister in town, John Hopkins.

[21] It is reported in the Gladue report that Mr. R. intends to access counselling services in the future. [22] As I indicated, the Crown says that a real jail sentence is the appropriate sentence and that it should be for nine to 12 months induration as it is necessary to address the principles of denunciation and general deterrence. The Crown says that sexual assault is aserious problem generally and is a serious problem, in particular, in the community of Klemtu. The Gladue report confirms that. [23] The Crown relies on two cases: R. v. Williams, 2011 BCCA 194, and R. v.

L.(G.), (ON CA), 175 C.C.C.(3d) 564, a decision of the British Columbia Court of Appeal. In the Williams case, the accused was 41 years old. The femalecomplainant was 14. There was a guilty plea to sexual assault. The Crown in that case appears to have proceeded by indictment. [24] The circumstances were that the victim was unconscious, the accused got into her bed, he removed her underwear and he hadhis hand in her vagina. She woke up in hospital. She had a vaginal tear and white fluid in her vagina. The accused and the victim wereboth Aboriginal.

The accused was intoxicated at the time of the offence. [25] The sentence was two years. It was upheld on appeal. The Court of Appeal at paragraph 9 of the decision commented on asentencing judge's emphasis on deterrence. That was referred to by the Crown in this case. At para. 9: I agree with this argument. We may not interfere with a sentence unless a sentencing judge has committed an error of law or the sentenceis unfit. There is much to be said for the sentencing judge’s concern for the protection of Aboriginal victims such as this child, and forthe role of deterrence in the Aboriginal community.

I do not believe, however, that the Court neglected to give weight to the systemicfactors in s. 718 or to rehabilitation generally. He considered all of these principles and reached a sentence that was 'within the range'. The court confirmed the sentence of two years. [26] In the Williams case, the court did not, as has been mentioned, consider whether a conditional sentence order was available. Infact, it may not have been available in that case, but in any event, that was not an issue before the court. The issue was the length of thesentence.

I also consider the facts in that case to be more aggravated than the facts in this particular case. [27] In R. v. L.(G.), the facts were that the accused was a 30-year-old and that the victim was 13 years old and was his sister-in-law. There were 18 incidents in that case over an 18-month period which included kissing, touching of breasts and vagina over and under herclothes, and inserting his finger into the victim's vagina. [28] The sentence was 10 months incarceration.

Although the trial judge was considered to have erred in considering a youth recordfor sexual assault that the accused had, the sentence was upheld. At paragraph 7 of the decision, the court said: This court has repeatedly stressed both the serious nature of sexual abuse against children and the importance of sentencing sexualoffenders with the principles of denunciation and deterrence in mind. ...

This court has repeatedly indicated that a conditional sentence should rarely be imposed in cases involving the sexual touching ofchildren by adults, particularly where, as here, the sexual violation is of a vulnerable victim by a person in a position of trust. [29] I note that in the R. v.

L.(G.) case, the offences were not isolated, they occurred over a lengthy period of time, they becameprogressively more invasive, and the court commented that a CSO should rarely be imposed in cases of adults touching children, but didnot say should never be imposed or, as the Crown indicated, that it was inappropriate, although that might be taken to mean inappropriategenerally, or appropriate only in rare cases. [30] I am of the view that a conditional sentence order is not excluded simply by the nature of the offence committed in this case.

Parliament has not seen fit to impose a minimum sentence for sexual assault. The sentence on

summary conviction is punishable by amaximum sentence of 18 months. [31]

Section 742.1 for the purposes of this sentencing sets out, really, four criteria that I have to consider. The first is, is there aminimum sentence? No, there is not. [32] Would this accused be sentenced to a period in excess of two years? No, he cannot because, as I read the Criminal Code, themaximum sentence for sexual assault where the Crown proceeds summarily is 18 months. In any event, the Crown, even if it could, wasnot asking for a sentence of more than two years. [33] I am also satisfied in this case that the imposition of a conditional sentence order would not endanger the safety of thecommunity.

These offences occurred over two years ago. There have been no further offences. The accused has been on bail. Therehas been no breach charges that I am aware of. He has complied with his bail and he has not committed any further offences. [34] He does not present at this point a danger to the community, at least if he were serving a jail sentence under a conditionalsentence order with conditions.

The accused has engaged in counselling and continues to do so, and I am satisfied, as I have indicated,that his remaining in the community would not endanger the community. [35] The real issue, as I think everyone knows at this point and certainly as highlighted by the Crown, is whether the imposition of aconditional sentence order would be consistent with the principles of sentencing as set out in ss. 718 through 718.2 of the Criminal Code

and, in particular, the principle of denunciation and general deterrence. [ 36 ] I am mindful of s. 718.01, that the primary consideration with an offence against children is denunciation and deterrence and that a sentence must be proportionate to the gravity of the offence committed. I am also mindful of s. 718.2(

e) which provides that all sanctions other than imprisonment that are reasonable should be considered for Aboriginal offenders. [ 37 ] There is a pressing need for denunciation and deterrence for sexual offences against children such as occurred here. It is particularly so in Klemtu where it is reported there has been a normalization of every type of abuse including sexual abuse or sexual assault. [ 38 ] The courts, however, have made it clear that a conditional sentence order can provide significant denunciation and deterrence. This was referred to by Her Honour Judge Warren of this court in R. v.

Rahmani , 2003 BCPC 535 , at paragraphs 25 to 28 . I am just going to read from that because Her Honour Judge Warren refers to the seminal decision of R. v. Proulx of the Supreme Court of Canada. At paragraph 25: Chief Justice Lamer delivered the judgment. Before dealing specifically with the applicability of a conditional sentence he quoted from paragraph 57 of R. v. Gladue ...

Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals. Overincarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament. In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarming rate. The 1996 sentencing reforms embodied in

Part XXIII, and s.718.2(

e) in particular, must be understood as a reaction to the overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions. [26] A conditional sentence, while most useful in satisfying the principles of rehabilitation and instilling a sense of responsibility can also provide for deterrence and denunciation.

Lamer C.J. says at paragraph 41, in comparing a conditional sentence with a period of incarceration: This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue ... at para. 72, In our view a sentence focussed on restorative justice is not necessarily a "lighter" punishment.

Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence. A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls. [27] No offences or types of offences are excluded from consideration. In paragraph 79 Lamer C.J. [says]:

Section 742.1 does not exclude any offences from the conditional sentencing regime except those with a minimum term of imprisonment.

Parliament could have easily excluded specific offences in addition to those with a mandatory minimum term of imprisonments but chose not to. [28] He says further in paragraph 81: In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. [ 39 ] In this case, the offences, while serious, do not fall at the upper end of the scale of seriousness, in my view.

The age of the victim, however, adds to the seriousness of the offence. [ 40 ] The accused is relatively young. He has no criminal record. He has a traumatic upbringing, but he has sought and continues to engage in regular counselling. He has complied with his bail conditions and he has not committed any further offences. He has

expressed remorse and has inquired about a healing circle where he can apologize publicly to the family for his actions. [ 41 ] The Crown (although I do not have any evidence on this) makes a compelling argument that a conditional sentence order would not serve to address the concerns or the principles of deterrence in the community, that the community does not understand or might not understand a conditional sentence order to be punitive, that a conditional sentence order might be seen, although the Crown did not use this term, as really just a beefed-up probation order. [ 42 ] In my view, firstly, I do not have evidence that that would be the attitude of the community and I only assume that the community would be informed as to the nature of a conditional sentence order, that it is a jail sentence.

The consequences of breaching a conditional sentence order is, to borrow a Monopoly term, go straight to jail, do not pass go. That is what happens. [ 43 ] You are arrested, you are put in jail, and you might get an -- I am addressing you now directly, Mr. R. You will get a bail hearing. You might get released, although your chances are low and you likely will spend the balance of the sentence in custody, not in the community, and I have to assume that there is some knowledge of the law and the knowledge of the consequences in the community. [ 44 ] Also compelling is the submission of Ms.

Carpentier that the problem of sexual abuse in this community or all communities, but in this community, in particular, is really only going to be resolved by the community itself. There are going to be cases that I will sit on in this community involving sexual assault where the accused will go to jail. [ 45 ] These are serious offences, as I have indicated. However, sentencing must be individual. The circumstances of the offender, in this case, Mr.

R., the circumstances of the offence itself, and the conditions and circumstances of the community are all factors that I must consider. [ 46 ] In this case, I conclude that while these offences require a jail sentence, it is one that may be served in the community under the terms of a conditional sentence order. It is going to be a longer term than what the Crown is asking for.

The Supreme Court of Canada has indicated that it is appropriate in imposing a conditional sentence order in making the sentence longer than might be the sentence if you were to be serving it in jail. [ 47 ] The result of that for you, Mr. R., if you were to breach any of the conditions of this, is that you may be spending a longer period of time in jail than what the Crown is asking for now. You are nodding your head as if you understand. I assume that you do, sir. [ 48 ] The sentence will be 18 months.

It will be served under a conditional sentence order with the following conditions and then, once I go through the conditions, I am going to ask the Crown if they have other conditions that they wish to have imposed and I will ask Ms. Carpentier if any of those conditions have any particular problems from her perspective. [ 49 ] There are the statutory terms, that you are to keep the peace and be of good behaviour.

That means you do not commit any offences. [ 50 ] You are to appear before the court when and if required to do so by the court. [ 51 ] You are to report to a conditional sentence supervisor. [ 52 ] I am going to look to Ms. Beamish for a date. When would he do that by, today? [ 53 ] MS. BEAMISH: Today, yes. [ 54 ] THE COURT: All right. By 4:00 p.m. today, hopefully it will be before that, and thereafter as and when directed by the supervisor and in the manner directed by the supervisor. It may be that you will be reporting to a delegate, I do not know, but Ms.

Beamish will tell you that. [ 55 ] You are to remain within the Province of British Columbia unless you have written permission to go outside of the province from your supervisor. [ 56 ] You are to notify your supervisor in advance of any change of name or address and promptly notify the supervisor of any change of employment or occupation. Those are the statutory terms.

In addition, the following terms will apply. [ 57 ] You must reside in a residence approved of by your supervisor and not change that residence without the prior written approval of your supervisor. [ 58 ] For the first 12 months of your conditional sentence order, you must obey a daily curfew under house arrest.

There will be some exceptions, but it will be from 8:00 p.m. to 8:00 a.m. and you shall not be outside your place of residence during your curfew unless you have the prior written consent of your supervisor. [ 59 ] You are to present yourself at the door of your residence upon request of the RCMP or any staff of Corrections branch who are there checking on your curfew. [ 60 ] The exceptions to your curfew are as follows. You may be outside your residence if you are attending to a personal medical emergency for yourself or your grandmother, A.R.

You may be outside your residence if you have the written permission of your supervisor to be outside your residence. This is during your curfew period. You may be outside your place of residence if you are travelling directly to or directly from your place of employment or if you are attending residential treatment or counselling. [ 61 ] Any other exceptions that you would suggest, Ms. Carpentier? [ 62 ] MS. CARPENTIER: Now, he has got to go down to Vancouver for the checking on his arm every six weeks.

[ 63 ] THE COURT: He can get permission from his supervisor. [ 64 ] MS. CARPENTIER: I do not know if that would -- and then that would all be written, and then he will take his grandmother out, as well, to her medical appointments. [ 65 ] THE COURT: The curfew is 8:00 p.m. to 8:00 a.m. He can get written permission to do those things if he has to go outside between then. [ 66 ] MS. CARPENTIER: Oh, that is, I assume, included in what that is. It would not be an emergency.

She is going up for medical at the end of the month and you are going to escort her -- and I am assuming that those terms allows him to do so with the written approval of his probation officer – [ 67 ] THE COURT: That is the – [ 68 ] MS. CARPENTIER: -- conditional sentence order supervisor. [ 69 ] THE COURT: That is the intention. [ 70 ] MS. CARPENTIER: Okay. [ 71 ] MS. BEAMISH: Yes, Your Honour. I typically tell the authority that their curfew is imposed wherever they are staying – [ 72 ] THE COURT: Right. [ 73 ] MS.

BEAMISH: -- except for the purposes of attending medical – [ 74 ] THE COURT: That is right, thank you. [ 75 ] MS. BEAMISH: -- emergencies. [ 76 ] THE COURT: So if you are down in Vancouver with your grandmother yourself, you have to be inside wherever you are supposed to be between those hours. [ 77 ] THE ACCUSED: Okay. [ 78 ] THE COURT: Okay, you understand that? [ 79 ] THE ACCUSED: Yes. [ 80 ] THE COURT: Okay. [ 81 ] You are to abstain from the possession -- this is a jail sentence and I appreciate -- sometimes I hear that this is a setup for a breach, but this is a jail sentence.

If you are in jail, you are not drinking and you are not doing drugs. You are not to possess or consume any alcohol or any substances as defined by the Controlled Drugs and Substance Act . That means illegal drugs. [ 82 ] THE ACCUSED: Mm-hmm. [ 83 ] THE COURT: No drugs, no alcohol. You cannot possess them, you cannot consume them. Okay? [ 84 ] You are to attend for and complete any assessments, treatment, and counselling including residential treatment and the sex offender treatment program if and as directed by your conditional sentence supervisor.

That counselling may also include residential treatment for trauma counselling. [ 85 ] You are not to be in the presence of any person under the age of 16 years unless you are in the company of an adult who is aware of your conviction of sexual assault. [ 86 ] Is that going to cause any problems? [SUBMISSIONS RE CONDITIONAL SENTENCE ORDER] [ 87 ] MS. HERRON: My only concern with respect to that term, Your Honour, is if he were to take over any of the tour guiding components for tourists at the Big House. [ 88 ] THE COURT: Well, there are going to be adults there. If there are not, then he cannot – [ 89 ] MS.

HERRON: There are adults there, but it is not -- it is the issue with respect to them being aware of the terms of the – [ 90 ] MR. CARPENTIER: Well, he would have to ask for Mr. G.R. to be present or somebody else. Could that not be fairly easily solved? [ 91 ] MR. HERRON: Well, whether or not that – [ 92 ] THE COURT: I am going to leave it -- sorry. [ 93 ] MS. HERRON: -- could always be the case.

[ 94 ] THE COURT: Sorry, I am going to leave it the way it is. He may not be doing those tours. [ 95 ] MS. HERRON: Was the age limit 16 years? [ 96 ] THE COURT: Yes, it was. [ 97 ] You are not to have any contact directly or indirectly with the complainant except incidental contact in the community or as approved by the supervisor for restorative justice purposes. So I realize that that is up to the Band to organize or maybe it is not, but you are going to have to get permission to participate in that if the complainant is involved. [ 98 ] What other conditions would the Crown be seeking? [ 99 ] MS.

HERRON: I think you have covered them all. The one that you could possibly consider that was mentioned in the Gladue report was whether or not some sort of community work service – [ 100 ] THE COURT: Thank you, I was going to – [ 101 ] MS. HERRON: -- payback. Okay. [ 102 ] THE COURT: I was going to impose that, as well. [ 103 ] You are to complete 150 hours of community work service in the first 14 months of your sentence. I do not think you will have any problem in doing that.

You seem to me, sir, to be somebody who has contributed to your community in the past and this is a way to pay your community back and it will be visible in the community, but you will have 14 months to complete it. Do not wait until the 14th month or you will have a problem getting it done, and that will at the direction of and to the satisfaction of the supervisor. [ 104 ] Your conditional sentence order will be followed by an 18-month probation order.

The terms are that you keep the peace and be of good behaviour. [ 105 ] You are to report to a probation officer within, I am going to say 14 days of the expiry of your conditional sentence order and, thereafter as and when directed by your probation officer. [ 106 ] The rest of the conditions on your conditional sentence order with the exception of the curfew will apply. [ 107 ] There will be an order that you provide a sample of your DNA. This is a primary designated offence, is it not? [ 108 ] MS.

HERRON: Yes, it is. [ 109 ] THE COURT: And you are to register and comply with the sex offender information registry. Is there a time that I have to impose on that? [ 110 ] MS. HERRON: I think it is 10 years – [ 111 ] MS. CARPENTIER: Yes. [ 112 ] MS. HERRON: -- if it is

summary and 20 if it is indictable. [ 113 ] THE COURT: All right. Whatever the term is, is it 10 years? [ 114 ] MS. CARPENTIER: I believe it – [ 115 ] THE COURT: Thank you. All right. [ 116 ] The victim impact surcharge, although I appreciate the importance of it, as I understand it, Mr. R. is not working. [ 117 ] MS.

CARPENTIER: That is correct. [ 118 ] THE COURT: It will be waived. [ 119 ] I should say as mitigating factors, this is a little bit late in the day now, but as mitigating factors, sir, I have taken into account the fact of your relatively young age, the fact that you have no criminal record, the fact that you have accepted responsibility, and I accept that you are remorseful. The aggravating factors we all know about, is the age of the child and the circumstances of the offence. All right. Thank you. [REASONS FOR SENTENCE CONCLUDED]