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R. v. Tyers, 2014 BCPC 140 (CanLII)

 PDF
Date:
2014-06-17
File number:
86810-1
Citation:
R. v. Tyers, 2014 BCPC 140 (CanLII), <https://canlii.ca/t/g7l56>, retrieved on 2024-04-25

Citation:      R. v. Tyers                                                                           Date: 20140617

2014 BCPC 0140                                                                          File No:                  86810-1

                                                                                                        Registry:      Port Coquitlam

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

REGINA

 

 

v.

 

 

STEPHEN LLOYD TYERS

 

 

 

 

 

ORAL REASONS FOR SENTENCE

OF THE

HONOURABLE JUDGE G. SMITH

Ban on Publication, pursuant to s.486.4(2) of the Criminal Code

 

 

 

 

 

 

 

 

 

Counsel for the Crown:                                                                                                  J. Powrie

Counsel for the Defendant:                                                                                            J.R. Ray

Place of Hearing:                                                                                       Port Coquitlam, B.C.

Date of Hearing:                                                                                                     June 17, 2014

Date of Judgment:                                                                                                June 17, 2014

 

INTRODUCTION

 

[1]           On May 2, 2013, I convicted Stephen Lloyd Tyers of one count of sexually assaulting a female at a chiropractic clinic on February 21, 2011, contrary to s. 271(1) of the Criminal Code.  Crown proceeded indictably, so the maximum sentence that can be imposed for this offence is 10 years of imprisonment.  The crown is seeking a sentence of incarceration for a term ranging between 18 months and three years, to be followed by a term of probation ranging between two and three years.  Mr. Tyers’s defence counsel suggested that an appropriate sentence for Mr. Tyers would be imprisonment  for four months to be followed by probation for a period ranging between two and three years in duration.        

CIRCUMSTANCES OF THE OFFENCE

 

[2]           In 2009 Ms. H. suffered a stroke that disabled her, including impairment of her vision.  In February 2011, with the hope of regaining some of her vision Ms. H. engaged in hyperbaric chamber and naturopathic treatments over a three week period at a clinic in Coquitlam, BC.  Mr. Tyers was a chiropractor working on contract at that clinic. 

[3]           At trial, I found that Mr. Tyers convinced Ms. H. that he could unblock Ms. H.’s unresolved emotions by Mr. Tyers applying pressure to Ms. H.’s tension points or “chakras.”  Neither chiropractic nor naturopathic professional disciplines accept such “energy work on chakras” as valid treatment.  Mr. Tyers convinced Ms. H. to permit him to apply these energy work techniques on her in Mr. Tyers’s chiropractic treatment room after hours, when no one else would be in the clinic.  He suggested to Ms. H. that she would benefit from the energy work techniques only if no one could hear Ms. H.’s emotional outbursts that Mr. Tyers claimed could result from him applying energy work techniques to Ms. H.

[4]           During the evening of February 21, 2011 at Mr. Tyers’s office, he kissed Ms. H. on her mouth and convinced Ms. H. to kiss his mouth, as Mr. Tyers instructed Ms. H. about how such kissing would help to resolve her emotional issues.  He convinced Ms. H. to take her clothes off but for Ms. H.’s socks, and to lie naked on the treatment table while covered by towels.  Allegedly providing techniques to improve Ms. H.’s emotional and physical health, Mr. Tyers applied pressure with his hands on Ms. H.’s inner thigh near her vagina, on Ms. H.’s breasts, eventually directly on Ms. H.’s vagina; and he eventually applied his mouth directly onto the nipple of Ms. H.’s breast. 

[5]           Ms. H. was fearful of Mr. Tyers applying these techniques including the sexual nature of his actions, and was fearful about being alone with Mr. Tyers.  Ms. H also testified that she thought that she would require Mr. Tyers’s assistance to leave the clinic and return to the skytrain station safely.  When Ms. H. wanted Mr. Tyers to cease applying these techniques to Ms. H., Mr. Tyers asked Ms. H. to masturbate him, which Ms. H. refused.  

[6]           At trial, Mr. Tyers denied almost all of Ms. H.’s allegations regarding the events that occurred between him and Ms. H. during the evening of February 21, 2011.  He denied touching Ms. H.’s vaginal area and breasts, but admitted to kissing Ms. H. to console her because she was emotionally distraught.  He denied that he acted unprofessionally by kissing Ms. H..  Mr. Tyers denied that Ms. H. was his patient, rather claiming that she and he were friends, and that he was providing professional expertise to help Ms. H. with her health issues. 

[7]           I rejected Mr. Tyers’s evidence, and found that he breached his position of trust as a health care provider to manipulate Ms. H. into believing that the accused was using his professional skills to help Ms. H. while in a private location and at a time in the clinic when no witnesses would be present to hear or see how Mr. Tyers was applying his hands-on techniques to Ms. H..  Mr. Tyers purposely induced Ms. H. to not object to him touching Ms. H.’s breasts and genitals during the evening of February 21, 2011.

THE OFFENDER

 

[8]           Mr. Tyers is 44 years of age, supports his wife and two children, and is well thought of in the community.  He has no criminal record.  I have read the very positive letters of support provided by Mr. Tyers’s references.  Mr. Tyers has family members and friends in the community who support Mr. Tyers.  Prior to committing this offence, Mr. Tyers was a chiropractor. 

[9]           Mr. Tyers reports that he does not abuse alcohol or drugs, and has not been diagnosed with a mental disorder.  He has reported reliably to his bail supervisor while on bail and has abided by his bail conditions.

[10]        For sentencing, a pre-sentence report was prepared.  Also a psychological assessment was completed for Mr. Tyers to assess his risk of reoffending.  The author of that psychological assessment suggested that Mr. Tyers poses a relatively low to moderate risk to reoffend with sexual violence in the future.  During the psychological assessment, Mr. Tyers denied committing the offence, blamed the victim Ms. H., did not express any remorse for his actions and stated that his only regret is not having had someone else in the room when providing Ms. H with treatment.  Mr. Tyers said he does not pose any risk to reoffend and does not require any treatment.  However, Mr. Tyers also said that he would comply with any legal condition compelling such treatment.  The author of the psychological assessment recommended that Mr. Tyers’s clinical scale profile be considered with a degree of caution because Mr. Tyers denied his guilt for this offence.

EFFECT ON MS. H.

 

[11]        The crown filed Ms. H.’s victim impact statement for this sentencing hearing, for which filing defence counsel did not object.  It is dated “11/28/11” which suggests that Ms. H. prepared the victim impact statement approximately nine months after the offence occurred.     

[12]        According to Ms. H’s victim impact statement, after the offence occurred she suffered severe anxiety attacks, emotional stress and financial difficulty.  Her doctor identified that Ms. H. was suffering from Post-Traumatic Stress Disorder.  She was able to meet with a counsellor since the offence occurred, but reports that the offence affected her relationships, she was uneasy around males and had no serious romantic relationships since the offence.  She continued to struggle with trusting men and continued to feel ashamed and weak.  Ms. H does not want Mr. Tyers to communicate with her. 

 

 

CROWN COUNSEL’S SUBMISSIONS

[13]        Crown submits that the sentencing principles applicable for sentencing Mr. Tyers are general deterrence, denunciation, retribution, rehabilitation and restraint, with paramount importance to be placed on general deterrence and denunciation.

[14]        The crown submitted that I should consider several aggravating factors, including:

1.   Mr. Tyers breached his position of trust when he held himself out as providing medical treatment for Ms. H. and she acted on that understanding.  

2.   Mr. Tyers engaged in significant planning to arrange the circumstances that gave him the opportunity to sexually assault Ms. H. in private.  Mr. Tyers’s planning included: 

a.   Mr. Tyers told Ms. H.that his treatment could really help with her emotional blocks;

b.   Mr. Tyers told Ms. H. not to tell his supervisor, Dr. Ratansi about the treatment because Dr. Ratansi would not understand, which confidentiality isolated Ms. H. from other healthcare providers;

c.   Mr. Tyers told Ms. H. that they would engage in the new therapy after everyone left the clinic;

d.   Mr. Tyers arranged with Ms. H. that Dr. Ratansi would drive Ms. H. to the skytrain station from the clinic as usual, then Mr. Tyers would pick Ms. H. up at the same skytrain station during the evening of February 21, 2011 and bring her back to the closed clinic;

e.   Mr. Tyers believed that no one would be in the clinic after it closed; and

f.     Mr. Tyers successfully planned to create a situation where he was alone with Ms. H. at the clinic after hours.

3.   Mr. Tyers knew Ms. H. was vulnerable and took advantage of her vulnerability, including:

a.   she had recently suffered a stroke and lost peripheral vision;

b.   she felt considerable guilt around the circumstances of that stroke occurring;

c.   her doctor had told Ms. H. not to expect improvement; and

d.   she was investigating other options.

 

[15]        Crown requested that I consider mitigating factors, including:

1.   Mr. Tyers does not have a criminal record.

2.   For almost all of his adult life, Mr. Tyers was a productive and contributing member of society.

3.   He worked two jobs while on bail.

4.   He has two children and a wife whom he supports.

 

[16]        Also, crown requests that I take into consideration:

  1. Mr. Tyers had a relatively normal upbringing.
  2. Mr. Tyers has been on bail in the community for over three years.
  3. The psychological assessment should be given less weight because:
    1. its conclusions are drawn from a single source being Mr. Tyers’s self-reporting;
    2. the author of the assessment was concerned about the possibility of Mr. Tyers deliberately attempting to present himself in an overly positive light while he was interviewed for the psychological assessment; and
    3. the assessment’s reference to three past complaints about Mr. Tyers’s behaviour do not provide sufficient details and so cannot be considered when assessing Mr. Tyers’s risk to reoffend.    
  4. The pre-sentence report’s persuasive weight should be less because its conclusions are affected by Mr. Tyers denying that he committed the offence.
  5. The Crown submitted that Mr. Tyers’s denial of committing the offence cannot be considered to be an aggravating factor for sentencing of Mr. Tyers.  
  6. Sexual assault is an extremely serious offence. It is punishable by a maximum sentence of 10 years imprisonment.  
  7. Mr. Tyers’s degree of responsibility is very high: he is solely responsible for a situation that he created.

 

[17]        The crown submitted that general deterrence and denunciation are of significance in cases of sexual assault:

R. v. B. (D.N.), 1987 CanLII 9285 (NS CA), 80 N.S.R. (2d) 334 at para 10; and

R. v. K. (T.E.), 1994 ABCA 365 (CanLII), 157 A.R. 257 at para 15.

 

[18]        The crown also submitted that general deterrence is one of, if not the, primary sentencing principle at play in cases involving sexual assault by a medical care giver. The British Columbia Court of Appeal noted general deterrence may be effective in sentencing an offender who is a member of a particular community. In R. v. Ashley-Pryce, 2004 BCCA 531 at para 10, the BC Court of Appeal stated:

Obviously, the breach of trust committed by Mr. Ashley-Pryce engages the principle of deterrence and denunciation and the sentence he receives is likely to be noted by that community to a greater extent than many sentences are noted by the general public. Society must be able to trust that such persons will not commit serious breaches of this kind.

 

[19]        The crown provided cases to support the crown’s request for Mr. Tyers’s sentence to include incarceration ranging between 18 months and three years in duration:

R. v. Alasti, 2011 BCSC 1189;

R. v. Ashley – Pryce, 2004 BCCA 531;

R. v. Alfred (1998), 1998 CanLII 5634 (ON CA), 122 C.C.C. (3d) 213; and

R. v. K. (T.E.) (1994), 1994 ABCA 365 (CanLII), 157 A.R. 257.

 

 

DEFENCE COUNSEL’S SUBMISSIONS

 

[20]        For sentencing Mr. Tyers, his defence counsel submitted that the principles of denunciation, general deterrence, proportionality and parity should be the predominant principles of this sentencing, and submitted that I must balance the objectives of denunciation and deterrence against the principles of rehabilitation and restraint.

[21]        Defence counsel conceded that a conditional sentence is not available as an option for sentencing Mr. Tyers, because the crown prosecuted Mr. Tyers indictably, and sexual assault is defined in the Criminal Code as a serious personal injury offence.  As a result of my findings when convicting Mr. Tyers of sexual assault, he must be sentenced to a term of imprisonment.

[22]        Defence counsel for Mr. Tyers did not oppose mandatory Orders being issued for taking a sample of Mr. Tyers’s DNA, for Mr. Tyers complying with sexual offender registration and for a firearms prohibition being imposed. 

[23]        Defence counsel also confirmed that Mr. Tyers’s abuse of trust is an aggravating factor for sentencing Mr. Tyers in accordance with s. 718.2(2)(iii) of the Criminal Code.  

[24]        Mr. Tyers agrees that the offence is serious and Ms. H. was in a vulnerable position due to her physical, mental and emotional background when Mr. Tyers violated Ms. H’s sexual integrity. 

[25]        Mr. Tyers submits that this was a single incident of sexual assault, no threats were made and while Ms. H’s sexual integrity was clearly violated, she was not physically hurt by Mr. Tyers’s actions.  

[26]        Mr. Tyers accepts that his moral blameworthiness is high due to the vulnerability of Ms. H. and his abuse of trust.  Mr. Tyers has requested that this court characterize Mr. Tyers’s offence as one of opportunity rather than premeditation and planning.  He claims that the risk of him reoffending is low.  Mr. Tyers submits that he took advantage of a vulnerable victim along with the situation presented by his then employment.  He submits that he does not want to engage in employment in the medical field again.  His current employer is aware of this prosecution and is supportive of Mr. Tyers.  Several letters of support were submitted for Mr. Tyers from members of the community including his spouse.  She believes that Mr. Tyers is a decent and honest man who cares with all his heart about the people he helps.  Further, Mr. Tyers has no prior criminal record, and submits that he is a contributing, valuable member of society.

[27]        Mr. Tyers does not dispute that a period of incarceration is required for him, and asks that I take into consideration that:

 

a.   his spouse and two children will suffer due to his incarceration;

b.   he has lost the ability to practice chiropractic services because he was found guilty of committing this offence;

c.   he will be labelled as a sex offender for the rest of his life; and

d.   he has lived an unblemished life as a contributing member of society. 

 

[28]        Defence counsel requested that I disregard the references in the pre-sentence report and in the psychological assessment to prior complaints about Mr. Tyers’s conduct.  Rather, I should rely on the reports’ recommendations and conclusions because Mr. Tyers’s sister and friend corroborated Mr. Tyers’s antecedents that are specified in Mr. Tyers’s pre-sentence report and psychological assessment.  Defence counsel submitted that I should find that Mr. Tyers poses a low risk of reoffending, considering the remaining information and conclusions contained in Mr. Tyers’s psychological assessment.  

[29]        Defence counsel requested that I sentence Mr. Tyers to four months of imprisonment plus a term of probation ranging between two and three years in duration.  For the imprisonment, defence counsel suggested that an appropriate range would be three to nine months, and provided cases to support his submission that denunciation and restraint can be satisfied by short sentences of incarceration for first time offenders who have excellent prospects for rehabilitation and who breached the trust that developed within a healthcare provider and patient relationship:

R. v. Buna, 2010 BCCA 53;

R v. Gavrilko, 2007 BCSC 1473;

R v. Nagahara, 1995 CanLII 1056 (ON CA); and

R v. Kadirsahib, 2013 MBQB 291. 

 

[30]        Defence counsel submitted that the crown’s sentencing position is unreasonable and demonstrably unfit, because it emphasizes denunciation and general deterrence without regard for the principle of restraint.  Defence counsel also provided cases for offenders who received sentences of incarceration for 12 months and 18 months, respectively, and for which, defence counsel submitted, far more aggravating features existed:

R v. Green, 2003 BCCA 51; and

R v. Power, 2010 BCCA 21.

 

 

OFFENDER’S RIGHT TO SPEAK AT SENTENCING HEARING

 

[31]        In accordance with s.726 of the Criminal Code, during the sentencing hearing I asked Mr. Tyers’s defence counsel if Mr. Tyers wished to say anything to me for his sentencing hearing.  Mr. Tyers declined to do so.  

SENTENCING PRINCIPLES AND OBJECTIVES OF THE CRIMINAL CODE

 

[32]        In R. v. L.M., 2008 SCC 31 at paragraph 17, LeBel J for the majority, summarized the sentencing principles and objectives contained in the Criminal Code of Canada, as follows:

“Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’s competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (referring to s.718.1 of the Criminal Code). To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative procedures set out by Parliament in the Criminal Code:

the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (referring to s.718 of the Criminal Code) …;

the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (referring to s.718.1 of the Criminal Code); and

the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (referring to s.718.2 of the Criminal Code).”

 

KEY OBJECTIVES AND PRINCIPLES FOR MR. TYERS’S SENTENCING

 

[33]        The key objectives of the sentence in this case include:

a.   denouncing unlawful conduct;

b.   deterring the offender and other persons from committing offences;

c.   because it is necessary, separating the offender from society;

d.   assisting in rehabilitating Mr. Tyers;

e.   providing reparations for harm done to Ms. H.; and

f.     promoting a sense of responsibility in Mr. Tyers, and acknowledging the harm done to Ms. H. and to the community.

 

[34]        Mr. Tyers’s sentence must be proportionate to the gravity of the offence and the degree of responsibility of Mr. Tyers. 

[35]        Further, I must consider:

a.   the aggravating and mitigating circumstances for Mr. Tyers;

b.   his sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

c.   he should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, so the least restrictive sanctions should be identified; and

d.   available sanctions other than imprisonment that are reasonable should be considered.

 

CASE ANALYSIS

 

[36]        I have considered all cases provided by defence counsel and by the crown, and am guided in particular by the following cases:

  1. R. v. Ashley - Price, in which the BCCA dismissed an appeal from a caregiver who received an 18 month jail sentence for sexually assaulting an elderly woman with Alzheimer’s disease in a seniors’ home.  It was a single incident involving a vulnerable victim.
  2. R. v. Green, in which the BCCA reduced the sentence to 12 months jail for a site superintendent who was convicted of sexually assaulting a first aid attendant at a remote drilling site.  The sexual assaults took place over time and grew increasingly brazen, were planned by the offender, and involved a vulnerable victim because she was isolated and could not leave the drilling camp.  Once the victim left the work site, the offender repeated similar behaviours with the next first aid attendant who arrived at the remote work camp.  The offender was unwilling to engage in treatment and had a prior record for sexual offences.  While Mr. Green’s circumstances were more aggravating than Mr. Tyers’s, Mr. Green’s planning over time, abuse of his position of authority, and his involvement of a vulnerable victim are similar to Mr. Tyers’s circumstances.  However, I take into consideration that unlike Mr. Green, Mr. Tyers committed this offence on only one occasion against Ms. H., he has no criminal record and he is willing to engage in treatment.
  3. The cases of R. v. Buna, R. v. Gavrilko, R. v. Nagahara and R. v. Kadirsahib did not involve vulnerable victims. 

 

 

PRE-SENTENCE REPORT AND THE PSYCHOLOGICAL ASSESSMENT

 

[37]        I am not taking into consideration the references contained in Mr. Tyers’s psychological assessment to prior complaints about Mr. Tyers’s conduct.  Such references appearing in pre-sentence reports and psychological assessments for sentencing consideration, are not appropriate:  R. v. Bartkow, 1978 CanLII 3731 (NS CA), [1978] N.S.J. No. 35 (NSCA), and R. v. Murphy, [1979] N.J. No. 36 (Nfld CA). 

[38]        Considering the pre-sentence report and the remainder of the psychological assessment, I believe that Mr. Tyers poses a relatively low risk of reoffending. 

[39]        I note that during interview for preparation of the pre-sentence report and also for preparation of his psychological assessment, Mr. Tyers denied committing the offence, blamed Ms. H. and stated that Ms. H. made a false allegation against him.  As submitted by crown and defence counsel, I do not consider Mr. Tyers’s denial to be an aggravating circumstance.  I am encouraged by Mr. Tyers telling the writers of the pre-sentence report and the psychological assessment that he is willing to engage in treatment.  I hope that his participation in and completion of treatment will assist Mr. Tyers to:

a.   reduce his risk of reoffending;

b.   understand why he committed this offence; and

c.   accept responsibility for committing this offence so he no longer blames Ms. H.  

 

FINDINGS FOR MITIGATING FACTORS

 

[40]        The mitigating factors are:

  1. Mr. Tyers does not have a criminal record.
  2. For almost all of his adult life Mr. Tyers was a productive and contributing member of society.
  3. He maintains employment with an employer who is aware of this prosecution and is supportive of Mr. Tyers.  
  4. Mr. Tyers’s has a sister who is supportive of Mr. Tyers. 
  5. Mr. Tyers’s spouse is supportive of Mr. Tyers. 
  6. He supports his spouse and two children who will experience financial hardship as a result of Mr. Tyers being sentenced to a term of imprisonment.
  7. Mr. Tyers has been on bail for three years since his arrest for this offence, and has not been charged with breaching his bail.
  8. Mr. Tyers has support in the community from friends and family members.
  9. He is willing to participate in treatment.

 

FINDING FOR AGGRAVATING FACTORS

 

[41]        The aggravating factors are:

  1. Mr. Tyers breached his position of trust as a professional health care provider when he held himself out as providing medical or other treatment for Ms. H. and she acted on that understanding.  Section 718.2 of the Criminal Code provides: “(iii)   evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be aggravating circumstances…” 
  2. I cannot accept Mr. Tyers’s submission regarding his offence being one of opportunity or being unplanned.  I must characterize his offence as premeditated and planned.  Mr. Tyers went to considerable efforts to develop Ms. H.’s trust in him as her professional healthcare provider.  He gave her hope for recovery from what she had been told were permanent physical impairments caused by her stroke.  Mr. Tyers convinced Ms. H. to keep confidential the procedures he was planning to apply to Ms. H. after hours in his office when no other people would be present in the office.  He convinced Ms. H. to accept a ride to a skytrain station as usual, from Mr. Tyers’s supervisor and employer Dr. Ratansi.  After work hours on February 21, 2011, Mr. Tyers picked the waiting Ms. H. up at that skytrain station to bring her back to the clinic after hours, in order to avoid detection from Dr. Ratansi because Mr. Tyers knew that Dr. Ratansi would object to Mr. Tyers using alternative techniques for Ms. H. at that clinic, after hours and without anyone else being present at the clinic.  In that planning, Mr. Tyers did not tell Ms. H. that his procedures would include touching her breasts or her vagina. 
  3. Mr. Tyers knew that Ms. H. was vulnerable, and took advantage of her vulnerabilities which included:
    1. Ms. H having suffered a stroke and loss of peripheral vision;
    2. her considerable guilt around the circumstances of her stroke;
    3. she had been told by her doctor that she should not expect improvement; and
    4. she was hopeful and somewhat desperate that Dr. Tyers’s procedures would improve her medical condition.  

 

EFFECT ON MS. H.

 

[42]        According to Ms. H’s victim impact statement written approximately nine months after the offence occurred, Ms. H. suffered severe anxiety attacks, emotional stress, feeling ashamed and weak and experienced financial difficulty.  Her doctor identified that Ms. H. was suffering from Post-Traumatic Stress Disorder.  She has been able to meet with a counsellor.  Her relationships were affected.  She was uneasy around and mistrusting of men and had no serious romantic relationships since the offence occurred.  Ms. H requested that Mr. Tyers be prohibited from communicating with her.  

CONSIDERATIONS FOR IMPOSING MR. TYERS’S SENTENCE

 

[43]        For imposing sentence for you Mr. Tyers, I have taken into consideration:

  1. the sentencing objectives and principles set out in sections 718 through 718.2 of the Criminal Code;
  2. all written and oral submissions provided by crown and your defence counsel, including the cases provided by them;
  3. the recommendations set out in your pre-sentence report and in your psychological assessment report, though I did not take into consideration the references in the psychological assessment to complaints about your past conduct;
  4. your aggravating and mitigating circumstances, including positive letters of support for you from your spouse and members of the community; and
  5. Ms. H’s victim impact statement as filed by the crown.

 

SENTENCE

 

[44]        I believe that a period of incarceration of a longer duration than requested by your counsel, but less than requested by the crown, with a period of probation to follow, are necessary to satisfy the sentencing objectives and principles required by the Criminal Code. 

[45]        Mr. Tyers, I am sentencing you to be imprisoned for 12 months, to be followed by probation for two years.  In my view, this sentence sufficiently satisfies the sentencing objectives and principles as required by ss. 718, 718.1 and 718.2 of the Criminal Code, including:

(pursuant to s.718):

a.   denunciation for you planning this offence over time, breaching your position of trust and for committing this offence against a victim who you knew was vulnerable;

b.   general deterrence, especially for professional healthcare givers;

c.   separating you from society because it is necessary considering that the crown proceeded indictably and you have been found guilty of an offence that is defined in s.752 of the Criminal Code as a “serious personal injury offence” for which a conditional sentence is not available;

d.   assisting in your rehabilitation,

e.   providing reparations for harm done to Ms. H, hopefully to give her some degree of closure;

f.     promoting a sense of responsibility in you;

g.   acknowledging the harm done to Ms. H and to the community;

 

 

 

(pursuant to s.718.1):

a.   proportionality to the gravity of the offence and the degree of your responsibility for committing this offence; and

 

(pursuant to s.718.2):

b.   consideration of the aggravating and mitigating circumstances for you;

c.   parity; and

d.   restraint. 

 

[46]        In my view, this sentence primarily satisfies the sentencing principles of denunciation, general deterrence, parity, restraint and your rehabilitation. 

[47]        Defence counsel did not object to the ancillary mandatory Orders being imposed as a result of your conviction, so I impose the following Orders as well: 

  1. Sexual assault is a primary designated offence for the purposes of section 487.051(1) of the Criminal Code, so I am imposing the mandatory Order authorizing a sample of your DNA to be taken for analysis and registration in the national DNA database.
  2. Pursuant to section 109 of the Criminal Code, I am also imposing the mandatory firearms prohibition Order for a period of 10 years.
  3. Pursuant to section 490.012 of the Criminal Code, I am imposing an Order in Form 52 requiring that you comply with the Sex Offender Information Registration Act for the period of 20 years as specified in section 490.013.

 

[48]        Because of the date of this offence for which you have been found guilty, I have discretion to impose or exempt you from paying the Victim Fine Surcharge.  Mr. Tyers, I am exempting you from paying the Victim Fine Surcharge because your earning capacity will be diminished and I recognize that the financial circumstances of your family and you may be difficult as a result of you committing this offence and you being sentenced to serve a sentence of imprisonment.

 

[49]        For the two year Probation Order, you must comply with conditions.

The mandatory conditions are:

1.   Keep the peace and be of good behaviour.

2.   Appear before the court when required to do so by the court.

3.   Notify the court or the 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.

 

The optional conditions are:

4.   You must report to a probation officer at 2610 Mary Hill Road in Port Coquitlam BC by 4:00 pm of the second business day after you are released from prison, and you must report to your probation officer thereafter as directed.

5.   You cannot contact S.H. either directly or indirectly.

6.   You cannot contact S.H.’s mother, R.H. either directly or indirectly.

7.   You must not attend within 100 metres of any location of S.H.’s residence, employment or education of which you are aware.

8.   You must not attend within 100 metres of any location of residence, employment or education of S.H.’s mother R.H. of which you are aware.

9.   You must participate in and complete counselling as directed by your probation officer and to your probation officer’s satisfaction.

10. You shall not provide chiropractic, massage or medical treatment services of any kind to a female patient without an adult third party who has been approved by your probation officer, being present for the duration of the services.  You must obtain and possess your probation officer’s written approval of that supervising adult before you commence providing any chiropractic, massage or medical treatment services of any kind to any female patient while in the physical presence of that approved supervising adult.

 

 

 

 

 

 

 

The Honourable Judge G.N. Smith

Provincial Court of British Columbia