R. v. Wilson, 2022 NSSC 244

SUPREME COURT OF Nova Scotia Citation: R. v. Wilson , 2022 NSSC 244 Date: 20220823 Docket: CRT. 505191 Registry: Truro Between: Her Majesty the Queen v. Brian Wilson Defendant Restriction on Publication: s. 486.4 & 486.5 of the Criminal Code DECISION ON SENTENCE Judge: The Honourable Justice Jeffrey R.

Hunt Heard: August 23, 2022, in Truro, Nova Scotia Written Release: Charges: August 24, 2022 s. 271 x 3 and s. 286.1(1) x 3 of the Criminal Code Counsel: Thomas Kayter/Laura Barrett, Crown Counsel Derek Sonnichsen, Defence Counsel Restriction on Publication: s. 486.4 CC & 486.5 CC on any information that will identify the complainants or any witnesses, shall not be published in any document or broadcast or transmitted in any way. 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(

b) on application made by the victim, the prosecutor or any such witness, make the order. Victim under 18 — other offences

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. Mandatory order on application

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order. Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 , c. 43, s. 8 2010, c. 3, s. 5 2012, c. 1, s. 29 2014, c. 25, ss. 22, 48 2015, c. 13, s. 18 2019, c. 25, s. 190 Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Justice system participants

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Offences

(2.1) The offences for the purposes of subsection (2) are (

a) an offence under

section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (

b) a terrorism offence; (

c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (

d) an offence under subsection 21(1) or

section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). Limitation

(3) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

Application and notice

(4) An applicant for an order shall (

a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (

b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. Grounds

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. Hearing may be held

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. Factors to be considered

(7) In determining whether to make an order, the judge or justice shall consider (

a) the right to a fair and public hearing; (

b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (

c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (

d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (

e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (

f) the salutary and deleterious effects of the proposed order; (

g) the impact of the proposed order on the freedom of expression of those affected by it; and (

h) any other factor that the judge or justice considers relevant. Conditions

(8) An order may be subject to any conditions that the judge or justice thinks fit. Publication prohibited

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (

a) the contents of an application; (

b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (

c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.

By the Court (orally): Introduction [ 1 ] As I indicated at the beginning of today’s hearing, there is a publication ban in place to protect the identity of the complainants in this matter. [ 2 ] Brian Wilson is to be sentenced today for multiple instances of sexual assault and breach of trust involving vulnerable women over whom he had power as a corrections officer in a federal correctional institution. [ 3 ] On the first day of a multi-week jury trial, and after the jury had been selected, Mr.

Wilson entered a plea to a number of the counts he was facing. [ 4 ] I have been provided with a joint recommendation in this case. This means the Crown and Defence, after negotiation, have agreed to a sentence that was recommended to the Court. [ 5 ] When a true joint recommendation on sentence is placed before the Court, there is a high threshold that must be met before a

sentencing court can depart from that recommendation. [6] While the process is not a rubber stamp, the Court would have to reach specific conclusions with respect to unfitness of therecommended sentence before it could consider a deviation: see R. v. Anthony-Cook, 2016 SCC 43 , [2016] 2 S.C.R. 204. [7] In these reasons I will weigh the joint recommendation against the facts and circumstances of the offences and the offender. Iwill consider the statutory factors to be weighed on sentencing and explain my conclusion as to the appropriateness of the jointrecommendation. Offence(s) [8] On April 4, 2022, Mr.

Wilson entered pleas of guilty to six counts on a multi-count Indictment, as follows: Count 1 That between May 1, 2018 and September 30, 2018 he did commit a sexual assault on D.V. contrary to

section 271 of the Criminal Code. Count 2 That between May 1, 2018 and September 30, 2018 being an official, to wit, a correctional officer for Nova Institution, did commit abreach of trust in connection with the duties of his office, contrary to

section 122 of the Criminal Code. Count 8 That on or about December 28, 2018 he did commit a sexual assault on S.T. contrary to

section 271 of the Criminal Code. Count 9 That on or about December 28, 2018 being an official, to wit, a correctional officer for Nova Institution, did commit a breach of trust inconnection with the duties of his office, contrary to

section 122 of the Criminal Code. Count 10 That between January 1, 2018 and December 31, 2018 he did commit a sexual assault on T.B. contrary to

section 271 of the CriminalCode. Count 11 That between January 1, 2018 and December 31, 2018 being an official, to wit, a correctional officer for Nova Institution, did commit abreach of trust in connection with the duties of his office, contrary to

section 122 of the Criminal Code. [9] When the pleas were entered, the parties presented an Agreed Statement of Facts, pursuant to Criminal Code

section 655. Ithank counsel for taking the time to work out that document. This is the proper way to present a true joint recommendation. Having thefactual details fully acknowledged is essential to avoiding subsequent changes of heart with respect to what is being alleged and admittedto. Facts [10] Any published version of these reasons would incorporate the Agreed Statement of Facts (redacted for victim names) as anAppendix. [11] By way of

summary, I note the following outline of the offences as they pertain to three victims, who I will identify by initials: Matters Involving D.V. • DV was incarcerated at Nova Institution. Brian Wilson was acting as a correctional officer in the Structured Living Environmentwhere she was housed. He began to target her with attention and eventually a proposal for sexual favours for him in exchange forprivileges including cigarettes.

The sexual contact is acknowledged in this instance to be oral sex. • He used his position of power over her to cause her to give him what he wanted. • The sex acts occurred with some regularity over a six-month period in 2018. Matters Involving S.T. • S.T. was an inmate at Nova Institution. She was kissed and touched on the breasts by Brian Wilson in December 2018. Again, heused his position of power to gain the opportunity to carry out these acts.

• One instance of such behavior is acknowledged. Matters Involving T.B. • T.B. was sexually assaulted by Brian Wilson while she was incarcerated at Nova Institution. Over two or three separate nights heentered her room within the Structured Living area. Among the acts carried out by him were multiple instances of digital penetrationand his using his position of power to cause her to perform oral sex on him. [12] It appears that, at the time, the Accused may have chosen to believe that the acts he committed were somehow consensual. They were not.

They were acts of pure sexual assault and grievous breaches of trust. [13] He used his position of power, as a correctional officer, to get what he wanted from a vulnerable set of women. He shouldnever be allowed to delude himself with idea that these were consensual relationships which later turned bad. They never were. He hadpower over these victims by virtue of his office. He exploited that position to commit acts of sexual violence and, for a time, achieve thesilence of the victims. [14] The law around these issues is well laid out in R. v. T.(D.), 2011 ONCJ 213: 44 The Supreme Court of Canada in Norberg v.

Wynrib (1992), (SCC), 92 D.L.R. (4th) 449 (S.C.C.), analyzed theconcept of "exercise of authority" by considering the issue from the standpoint of assault, referring, inter alia, to subs. 265(3) of the Code(formerly 244(3)). LaForest, J. noted that the causes of invalidation specified in the provision were not new in law and that Canadiancase law has long recognized that the exploitation of a person's vulnerability vis-à-vis another person can affect the validity of theconsent. 45 Alain Morand, J.C.Q of the Court of Quebec in the case of R. c.

H. (H.), 2007 QCCQ 4738(C.Q.), gave a good and accuratesummary of the law surrounding "exercise of authority" since the Supreme Court's judgment in Norberg; paragraph 31 reads as follows: [31] The following principles emerge from this Supreme Court judgment and from subsequent case law: • the circumstances of each case need to be examined to determine whether an overwhelming imbalance exists in the power relationshipbetween the parties; • if it can be proven that there was such a disparity in the relative situations of the parties, that the weaker party was unable to choosefreely, consent in the case of sexual activity will be regarded as legally ineffective for reasons of public policy; • the exercise of authority means the ability to influence the behaviour of others in such a manner as to make them consent to sexualactivity and is not limited to the right to command or to force obedience; • irrespective of the nature of the relationship between the accused and the complainant, the purpose of subsection 265(3)(

d) ofthe Code is that the consent must be valid and actual; • the court must carefully consider the nature of the relationship between the parties in order to determine: (1) the existence of animbalance in the power relationship between the parties, (2) exploitation of this imbalance, and (3) the causal effect of this exercise ofauthority on the consent given by the complainant; .... 46 The protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity isclearly the aim of s. 273.1(2)(c): Ewanchuk, supra at 496-98; R. c.

Audet (1996), (SCC), 106 C.C.C. (3d) 481 (S.C.C.),at 490ff; Norberg v. Wynrib, supra. at 460-64. Sentencing Recommendation [15] I have been presented with a joint recommendation by counsel. I accept this was a fully negotiated arrangement with true quidpro quo on each side. [16] Both sides faced genuine risks in proceeding to trial. This was not a simple or straightforward matter. Anyone could examine

the record of the applications being addressed, right up to the week before the trial, to see the complex set of issues in play. [ 17 ] Both Crown and Defence faced real risks of a negative outcome on various counts. [ 18 ] The recommended sentence placed before the Court is for a term of incarceration of three years together with a series of ancillary orders. Items Reviewed [ 19 ] In weighing this matter, I have considered the submissions of counsel as well as the additional material filed with the Court.

These additional filings include the following: • Pre-Sentence Report (PSR) of June 8, 2022 • Victim Impact Statement (VIS) of S.T. [ 20 ] I have also taken notice of the harm these offences have visited on the victims, even where they have not filed a formal VIS. I have reviewed, and incorporate here, the law on this point as summarized by Justice Rosinski in R. v. C.H.R ., 2012 NSSC 233 . Circumstances of the Offender [ 21 ] Mr. Wilson is a 56-year-old first time offender.

The PSR and submissions of counsel provided a detailed account of his upbringing, education, work and family life up to the point of these offences. • He grew up in the Yarmouth area. His early life was marked with some turmoil in that he lost his father at a relatively early age. The family experienced some years of real financial hardship following. However, thanks to his mother, he did enjoy a generally positive upbringing. • Mr. Wilson’s first jobs were labouring jobs in the fishing industry. Later he went out West and eventually worked himself into a position with Correctional Service Canada.

He worked in the west, then Ontario and eventually made his way to Nova Institution where his offences occurred. • He has one child, who is now approximately 35 years old. He was not involved in the upbringing of his daughter and has no real relationship with her at the current time. • He reports himself as having experienced some mental heath challenges through his life.

I don’t diminish those but say only that they sound like the sort of issues that many people encounter in their lives without resorting to abusive exploitive behavior against other people who are compromised in their ability to protect themselves. • In terms of his current circumstances, the Report indicates he is currently involved in a relationship with a partner who is aware of his offences. Since being terminated by CSC he has been working for a trucking firm. His future prospects in this area of work appear to be good, even if he is to serve a term of custody. [ 22 ] In general, a review of Mr.

Wilson’s life and background reveal a person who to all appearances led a very conventional and outwardly pro-social life. He chose to throw all that away with a decision to exploit, rather than protect, those he was paid to safeguard. Principles of Sentencing [ 23 ] The purposes and principles of sentencing remain unchanged, whether or not the Court is dealing with a joint recommendation. [ 24 ]

Section 718 of the Criminal Code codifies the objectives to which a court aspires in sentencing. It is an individualized process, not a ‘one size fits all’ exercise. These objectives are as follows: (

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 25 ] I am also mindful of

Section 718.1, which reminds me that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. [ 26 ] Also relevant is

Section 718.2 which directs that a Court which imposes a sentence must 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. .... (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, .... shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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 and consistent with the harm doneto victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [27] I have been referred to various case authorities by the parties. I have reviewed these and others, including: R. v. Boulanger, 2006 SCC 32 R. v. Ewanchuck, (SCC), [1999] 1 SCR 330 R. v. Upjohn, 2018 ONCA 1059 R. v. Cook, 2010 ONSC 4534 R. v. T.(D.), 2011 ONSC 213 R. v. Campbell, 2022 NSCA 29 R. v. W.H.A., 2011 NSSC 246 R. v.

Crocker, (NLPC) R. v. Cusack, (NSCA) R. v. Pearcey, 2015 NSPC 72 Aggravating Factors [28] As noted above, the Court is required to take account of the various aggravating and mitigating factors. In this case theaggravating factors include: • These were offences carried out against a vulnerable population. In noting this I want to recognize that the breach of trust offencesthemselves incorporate the element of the power imbalance.

Accordingly, this has to be considered not as an aggravating factor, per se,as regards those counts, but as a core element of the offence. • It is aggravating that these offences have had a significant damaging effect on the victims. • His crimes required a degree of deliberation and planning. This was not the case of an isolated act of impulse. • There are some signs in the PSR that Mr. Wilson lacks some insight into who or what is to blame for these offences. He and hisfundamental character flaws - exposed by having been put in a position of power over these women - are to blame. Not his upbringing.

Not his former partner. Not any alcohol issues he might want to point to. He alone is responsible. Mitigating Factors [29] Also, to be taken into consideration are any mitigating factors which may be present. In this case, these include the following:

• The guilty plea, and the acceptance of responsibility that this entails is the major mitigating factor. Mr. Wilson is entitled to the full measure of mitigation on this point. • By virtue of the plea, the vulnerable victims were relieved from having to testify at trial. This would have been an extremely difficult and stressing experience. His acceptance of responsibility allowed this to be avoided. He deserves credit for this. • The PSR does contain a statement of remorse as well.

Joint Recommendation [ 30 ] Returning to the joint recommendation, I am required, as I indicated earlier, to follow the guidelines set forth by the Supreme Court of Canada in R. v. Anthony-Cook . These principles were reviewed by Judge Derrick (now Justice Derrick of the Nova Scotia Court of Appeal), in R. v. Sponagle , 2017 NSPC 23 : 49. In Anthony-Cook, the Court established the test that a sentencing judge must apply before departing from a joint submission. That test is whether the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.

Moldaver, J. writing for a unanimous Court has said this test "helps keep trial judges focused on the unique considerations that apply when assessing the acceptability of a joint submission." Reciting a passage from one of two decisions he referenced from the Newfoundland Court of Appeal, Moldaver, J. said when assessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts." And this is what Moldaver, J. had to say about what he described as a "powerful" statement against the rejection of a joint recommendation on sentence: 34 ...Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.

This is an undeniably high threshold... [ 31 ] Bearing all of the above in mind, I have weighed the recommended sentence and assessed the range of sentencing in recent and regional cases. [ 32 ] A direct comparison of sentencing decisions does present some real challenge. It is self evident to note that every case has its own unique factual aspects.

The one overriding and controlling take away is that a significant custodial sentence is required in circumstances of this or similar nature. [ 33 ] I am aware of the fact that, as a former federal correctional officer, any time he does in a federal correction institution is likely to be very challenging time. [ 34 ] I am further aware that one of the factors at play here was the fact that this was a matter where the outcome of the jury trial was not a foregone conclusion. There were many legal and factual complexities.

This included a matter which arose the week prior to trial involving claims of informer privilege and an allegation of conspiracy. This required a complex set of hearings mandated by the Supreme Court of Canada decision in R. v. Basi , 2009 SCC 52 . These would have been live issues if the trial had proceeded. [ 35 ] By reaching a negotiated outcome the Crown ensured a number of serious convictions.

The Defence gained a measure of certainty on penalty, without which, their risk was of a much higher sentence. [ 36 ] I have concluded that the recommended sentence is fit, falling as it does within an acceptable range of sentences for this offence, having regard to the totality of the circumstances and the treatment of other offenders in similar circumstances. [ 37 ] There is no sound reason to depart from the recommendation of counsel. [ 38 ] Accordingly, Mr. Wilson, please stand. You are hereby sentenced as follows: 1. You will serve a term of three years in federal custody.

By agreement, there is no credit to be calculated for pre-trial custody, which in any case was minimal. 2. The sentence will be allocated among the counts as agreed by counsel and put on the record. 3. In terms of ancillary orders, you will be subject to the following: ▪ Mandatory s. 109 weapons prohibition for a term of 10 years beginning post release from custody, pursuant to s. 109(2)(a)(ii); ▪ Mandatory DNA Order, pursuant to s. 487.051, as these offences include a primary designated offence; ▪ SOIRA Order for life pursuant to S. 490.012 and 490.013(2.1);

▪ A s.743.21 endorsement prohibiting contact with D.V., T.B., and S.T. or any current or formerly federally incarcerated females (except through legal counsel), while you serve any period of imprisonment as a result of this sentence. Remaining Counts [ 39 ] Counsel, what is the intention with respect to the remaining counts? [ 40 ] MR. KAYTER: The Crown offers no evidence with respect to the remaining counts. Hunt, J.