Regina v. A.I., 2014 BCPC 183 (CanLII)
Citation: Regina v. A.I. Date: 20140813
2014 BCPC 0183 File No: 88600-1
Registry: Port Coquitlam
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
A.I.
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE G.N. SMITH
Counsel for the Crown: M. Mann
Counsel for the Defendant: D. Markovitz
Place of Hearing: Port Coquitlam, B.C.
Dates of Hearing: February 27, 2014, March 28, 2014 and August 13, 2014
Date of Judgment: August 13, 2014
INTRODUCTION
[1] On August 21, 2013, I found A.I. guilty of sexually assaulting two female patients while he provided them with nursing care on a hospital ward on June 11 and 12, 2012, contrary to s. 271(1) of the Criminal Code. The Crown proceeded summarily, so the maximum sentence that can be imposed for these offences is 18 months imprisonment. The Crown is seeking a sentence of incarceration between three and four months in duration or a longer Conditional Sentence Order to be followed by a term of probation for 18 months.
[2] The Crown suggested that if A.I. is sentenced to concurrent 90 day jail sentences, the Crown would not be opposed to A.I. being permitted to serve those jail sentences intermittently. A.I.’s defence counsel is seeking a conditional discharge for A.I.
CIRCUMSTANCES OF THE OFFENCES
[3] Z.R. and M.W. were hospitalized with very serious medical conditions in June 2012 at the Ridge Meadows Hospital in Maple Ridge, BC. A.I. was their nurse on the ward where Z.R. and M.W.’s hospital rooms were located. During the evening of June 11, 2012 and into the early morning hours of June 12, 2012 while providing Z.R. and M.W. with nursing care, A.I. administered prescribed opioid medications to Z.R. and M.W. for management of their pain, and was aware that the opioid medications caused sedating effects for Z.R. and M.W.
[4] In Z.R.’s hospital room, A.I. rubbed Z.R.’s foot, shin and calf, tried to kiss her repeatedly, and kissed the side of Z.R.’s mouth while she tried to move away from A.I.’s lips. A.I. got into Z.R.’s hospital bed, put his feet up on the bed and placed his hand behind Z.R.’s head. A.I. also cupped Z.R.’s face while caressing the side of her face. She was frightened because she was in a private room at the end of a hall in the hospital.
[5] In M.W.’s hospital room, A.I. caressed the cheek of her face, kissed her cheek and forehead, and touched her breasts. She awoke in her hospital bed very early during the morning of June 12, 2012 to discover A.I. lying in her bed with his face placed between her breasts. Later in the morning A.I. also caressed M.W.’s arm, when she was sitting with her intravenous equipment at a table in a TV room of the hospital.
[6] Both Z.R. and M.W. were fearful of A.I. while these events occurred, were shocked by A.I.’s conduct and tried to resist his advances.
[7] At trial, I found Z.R. and M.W. to be credible witnesses and their testimony to be reliable. At trial, A.I. denied almost all of Z.R.’s and M.W.’s allegations. I found his testimony to be evasive, contradictory, inconsistent and unbelievable, and provided several examples to support my findings. I found that A.I. was not a credible witness and so I rejected his testimony. I found that A.I. breached his position of trust as a health care provider as A.I. took advantage of Z.R. and M.W. while providing them with nursing care.
THE OFFENDER
[8] A.I. is 35 years of age, has a wife and two children, and is very highly regarded in his Church community. He has no criminal record. I have read the very positive letters of support provided by A.I.’s references. A.I. has family members and friends in the community who support A.I.
[9] A.I. 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 A.I. to assess his risk of reoffending. The author of that psychological assessment rates A.I. as being of low risk to reoffend. A technical suitability report was also prepared to assess whether electronic monitoring could be an option for A.I., if he receives a community based sentence.
EFFECTS ON Z.R. AND M.W.
[11] The Crown filed Z.R.’s victim impact statement and M.W.’s victim impact statement. Z.R. and M.W. each read their respective victim impact statements during the sentencing hearing.
[12] After the offence occurred, Z.R. lost her sense of security, confidence, self-esteem and trust. She was fearful and felt vulnerable in the community, and is mistrustful of health care staff’s ability to protect her and her family members when they need to access health care. Z.R. has received counselling to work toward recovering from this offence.
[13] Likewise, M.W. experienced a loss of self-confidence, lost faith in the medical system, resisted returning to the hospital and was very fearful when she had to return to the hospital to receive health care. M.W. also has received counselling to work toward recovering from this offence.
[14] The family members of Z.R. and M.W. also were affected negatively by these offences.
CROWN’S SUBMISSIONS
[15] The Crown submits that the sentencing principles applicable for sentencing A.I. are general and specific deterrence, denunciation and rehabilitation, with paramount importance to be placed on denunciation because A.I. was a medical professional who breached his position of trust when he committed these offences. The Crown submits that a conditional discharge for A.I. is not in the public’s interest.
[16] The Crown submitted that I should consider several aggravating factors, including:
1. A.I. was in a position of trust relative to Z.R. and M.W., aggravating A.I.’s moral blameworthiness.
2. He had a fiduciary relationship as these patients’ nurse.
3. As a health care provider, A.I. assumed a position of power and responsibility over Z.R. and M.W.
4. Nurses must exercise this power and these responsibilities for the good of patients and in the best interests of patients.
5. A patient is in an inferior position to a health care provider, and must completely trust the health care provider.
6. A.I.’s actions completely ignored the best interests of Z.R. and M.W.
7. Sexual assault of a patient by a health care provider is highly aggravating.
8. A.I. was not just Z.R.’s and M.W.’s nurse. While in A.I.’s care, A.I. administer pain medications to Z.R. and M.W., whose capacities were diminished.
9. The offences happened at night, nobody was in the vicinity of the hospital ward when theses offences occurred, and Z.R. and M.W. were completely at the mercy of A.I.
10. Z.R. and M.W. were patients in hospital rooms, which must be places of safety.
11. There was a significant power imbalance between A.I. and the patients, Z.R. and M.W.
12. Society operates on a principle that persons ought to decide what happens to their bodies.
13. A.I. ignored Z.R.’s and M.W.’s lack of consent.
14. Real jail is necessary to denounce A.I.’s commission of these offences.
[17] The Crown requested that I consider mitigating factors, including:
1. A.I. is in a committed relationship with his wife and has two children.
2. He lives with his spouse and children in a house in the community.
3. A.I. has a strong connection to community.
4. He has a strong relationship with his Church in the community. There is strong evidence that A.I. is a valued member of the community considering his connection and work with the Church.
5. He maintains contact with his family abroad.
6. A.I. has good connections and relationships with his family.
7. For his employment history, A.I. has taken considerable steps to improve himself, has worked extensively in the community, volunteers in the community and works for his local Church.
8. I should consider A.I.’s psychological health positively, because A.I. saw a counsellor until he could not afford counselling anymore, and his psychological assessment does not raise significant concerns.
9. The pre-sentence report and psychological assessment refer to A.I. being sexually assaulted as a child over a number of years. As a result, A.I.’s rehabilitation may need to include trauma therapy.
10. A.I. has a strong relationship with his spouse.
11. There is no evidence of A.I. suffering from substance abuse or alcohol abuse.
12. He has no criminal record.
13. A.I. is willing to participate in any counselling that is to be provided to him.
14. A.I.’s pre-sentence report includes the following mitigating factors:
a. A.I. has a very stable life other than these events.
b. He will participate in counselling.
c. He has experienced trauma from past sexual abuse.
d. There are no substance or alcohol addiction concerns for A.I.
e. A.I.’s denial of responsibility for committing these offences is not an aggravating factor, but requires him to participate in counselling for his rehabilitation.
15. A.I.’s psychological assessment includes the following mitigating factors:
a. A.I. is experiencing considerable stress from these events.
b. Personality assessments do not raise concerns about A.I.’s truthfulness for preparation of the psychological assessment.
c. He poses a low risk for reoffending.
d. The psychological assessment’s author is concerned that A.I.’s risk for reoffending is difficult to assess when A.I. denies committing the offence.
e. A.I. is assessed as posing a very low risk of reoffending relative to the prison population, and that very low risk score for reoffending would be even lower if the assessment did not include information about A.I. being sexually assaulted as a child.
[18] The Crown also requested that I take into consideration additional concerns, including:
1. Most of the letters of support provided for A.I. were written in 2012 just after the offences occurred so those letters should be given little weight. The letters written in 2012 appear to have been written to support A.I. regarding termination of his employment as a nurse when allegations of these sexual assaults came to the attention of his employers.
2. There is no evidence of a cultural basis for A.I. committing these offences.
[19] The Crown 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 paragraph 10, the BCCA 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.”
[20] The Crown provided cases to support the Crown’s request for A.I. to be sentenced to a term of imprisonment: R. v. Ashley-Pryce, supra; and R. v. M.E.H., 2009 BCPC 315.
DEFENCE COUNSEL’S SUBMISSIONS
[21] Defence counsel submitted that a conditional discharge is in A.I.’s interest and also in the public’s interest, and submitted many reasons to support his request for a conditional discharge for A.I., including:
1. These are minimal (de minimis) sexual assaults.
2. These offences were culturally based, in that A.I. did not abide by boundaries that we consider appropriate.
3. A.I. put his lips to the victims’ lips, and touched the victims.
4. A.I. did not believe that these were sex offences.
5. He did not have a sexual motivation in his mind.
6. Z.R. and M.W. had a very different opinion about A.I.’s actions.
7. A.I. is a good man.
8. The pre-sentence report and the psychological assessment are as positive as can be expected.
9. Defence counsel submitted that nothing I can do as the sentencing judge will punish A.I. more than he has already been punished.
10. A.I. lost his job because of these events, and works on a farm now.
11. He has had to appear in court a number of times.
12. A.I. understands that his actions were inappropriate and will never commit this offence again.
13. A.I. has been assessed by a forensic psychologist.
14. A.I. will take counselling as directed by his probation officer to learn what boundaries exist.
15. This is not a case of A.I. intending to sexually assault the victims.
16. He thought he was helping the victims, but the test does not involve his intent.
17. Considering the context of A.I.’s actions, he breached boundaries that we accept while he was acting in the role of a medical professional and Z.R. and M.W. were under his medical care.
18. A.I. had a duty to provide medical care and did not think he was breaching their sexual integrity.
19. Discharges are available for sexual assaults.
20. Sexual assaults vary widely. Defence counsel submitted that the sexual assaults committed by A.I. are on the lowest end of what we consider to be sexual assault.
21. A.I. is a young man, 35 years old.
22. He has a good family and a good future.
23. A.I. has to make adjustments to his life.
24. He studied for many years and cannot work as a nurse any longer.
25. It is highly unlikely that A.I. will ever commit such an offence again.
26. A.I. is religious.
27. He is respectful and very kind.
28. Defence counsel submitted that there is no reason to impose a conviction on A.I.
[22] Defence counsel provided cases to support his request for A.I. to receive conditional discharges: R. v. T.J.H. 2012 BCPC 115 (CanLII), and R. v. Reyes-Borgwardt, 2010 BCSC 1594 (CanLII).
A.I.’S RIGHT TO SPEAK DURING THE SENTENCING HEARING
[23] In accordance with s. 726 of the Criminal Code, during the sentencing hearing I asked A.I.’s defence counsel if A.I. wished to say anything to me for his sentencing hearing. A.I. declined to speak to me during the sentencing hearings.
SENTENCING PRINCIPLES AND OBJECTIVES OF THE CRIMINAL CODE
[24] 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).”
CASE ANALYSIS
[25] I have considered all cases provided by the Crown and by defence counsel:
1. In R. v. Ashley-Pryce, supra, a caregiver was convicted for sexually exploiting a person with a disability. The victim was an Alzheimer’s patient in a senior’s home. The caregiver was observed standing at the victim’s bedside, with the caregiver masturbating while holding the victim’s hand. The BCCA upheld a sentence of 18 months jail plus probation for one year. It was a single incident involving a caregiver sexually assaulting a vulnerable victim.
2. In R. v. M.E.H, supra, an ambulance attendant was convicted for sexually touching a youth, which required a mandatory minimum sentence. The ambulance attendant was observed in an ambulance cupping the youth’s genitals while physically examining the youth. The offender received a 90 day jail sentence which he was permitted to serve intermittently.
The circumstances in R. v. M.E.H., supra, involved a medical care attendant sexually assaulting a vulnerable victim, which circumstances are similar in nature to the two offences committed by A.I.
3. In R. v. T.J.H., supra, a man pled guilty to sexually assaulting a fiancée of his friend by touching the victim inappropriately through her clothing repeatedly despite her continual objections. The court found this particular offender to be unique. The offender was obsessed with the victim and wanted to initiate a romantic relationship with her. The offender was considered to be lacking in social skills and having some unique challenges, bigger challenges than some other people. Mitigating circumstances included the offender entering a guilty plea indicating that he accepted responsibility. The court determined that a conditional discharge was appropriate because of this particular offender being unique and other people in similar circumstances did not need to be sent the message that this kind of behaviour is not to be accepted or condoned.
Unlike A.I.’s circumstances, the circumstances in R. v. T.J.H., supra, included an offender who was lacking in social skills and the victim was not vulnerable.
4. In R. v. Reyes-Borgwardt, supra, a man pled guilty to sexually assaulting an unconscious man by the offender touching the complainant’s bare buttocks with the offender’s fingers and tongue. The victim was unconscious from a night of drinking and partying, and was unconscious from drinking heavily. For some bizarre reason, by 7:40am the offender and his associates thought it was a good idea to play a practical joke on the unconscious victim by imitating sexual acts with the unconscious victim while photographing them, all for no sexual purpose or gratification. In granting the conditional discharge, the Court found that what the offender appeared to have been participating in was a practical joke gone terribly wrong, rather than the actual or attempted satisfaction of sexual desire through taking advantage of an unconscious victim. The Court found that it was clearly unnecessary to deter the offender or to separate him from society.
The very unique circumstances in R. v. Reyes-Borgwardt, supra, are not similar to those of A.I.’s, because Mr. Reyes-Borgwardt was not a health care provider or in another position of trust relative to the victim. A.I. was a paid health care provider, required to provide nursing care to two patients overnight on A.I.’s hospital ward, when he knew they were experiencing sedating effects from the prescription opioid medications that A.I. was administering to Z.R. and M.W. for pain management.
THE PRE-SENTENCE REPORT, PSYCHOLOGICAL ASSESSMENT AND THE TECHNICAL SUITABILITY REPORT
[26] Considering A.I.’s pre-sentence report and psychological assessment, I believe that A.I. poses a low risk of reoffending.
[27] I do not consider A.I.’s denial about committing these sexual assaults to be an aggravating circumstance. I am encouraged by A.I.’s willingness to engage in treatment and his efforts to participate in treatment to date.
[28] The technical suitability report suggests that A.I. can be supervised in the community with electronic monitoring. The writer recommended a curfew with exceptions to permit A.I. to leave his residence for employment, attending to matters relating to his children and to attend Church on a regular basis.
MY FINDINGS FOR MITIGATING FACTORS
[29] The mitigating factors are:
1. A.I. has a strong connection to community.
2. He is in a committed relationship with his wife and has two children.
3. He lives with his spouse and children in a house in the community.
4. A.I. has a strong relationship with his Church in the community. There is strong evidence that A.I. is a valued member of the community considering his connection and work with the Church.
5. He maintains contact with his family abroad.
6. A.I. has good connections and relationships with his family.
7. For his employment history, A.I. has taken considerable steps to improve himself, has worked extensively in the community, volunteers in the community and works for his local Church.
8. I consider A.I.’s psychological health positively, considering that A.I. saw a counsellor until he could not afford counselling anymore, and the psychological assessment does not raise significant concerns.
9. The pre-sentence report and psychological assessment refer to A.I. being sexually assaulted as a child over a number of years. As a result, his rehabilitation may need to include trauma therapy.
10. A.I. has a strong relationship with his spouse.
11. There is no evidence of him suffering from substance abuse or alcohol abuse.
12. A.I. has no criminal record.
13. He is willing to participate in any counselling that is to be provided to him.
14. A.I.’s pre-sentence report also includes these mitigating factors:
a. He has a very stable life other than these events.
b. He will participate in counselling.
c. He has experienced trauma from past sexual abuse.
d. There are no substance or alcohol addiction concerns for A.I.
e. His denial of responsibility for committing these offences is not an aggravating factor, and he is willing to participate in counselling for his rehabilitation.
15. A.I.’s psychological assessment also includes these mitigating factors:
a. A.I. is experiencing considerable stress from these events.
b. Personality assessments do not raise concerns about A.I.’s truthfulness for preparation of his psychological assessment.
c. A.I. poses a low risk for reoffending.
d. A.I. is assessed as posing a very low risk of reoffending relative to the prison population, and the very low risk score for reoffending would be even lower if A.I. had not been sexually assaulted as a child.
MY FINDING FOR AGGRAVATING FACTORS
[30] The aggravating factors are:
1. A.I. breached his position of trust as a professional health care provider when he sexually assaulted two hospital patients while they were under his nursing care. Section 718.2(a)(iii) of the Criminal Code provides:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence 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,
shall be deemed to be aggravating circumstances;
2. Sexual assault of a patient by a health care provider is highly aggravating. He had a fiduciary relationship as nurse with these patients. As a health care provider, A.I. assumed a position of power and responsibility over Z.R. and M.W. Nurses must exercise this power and responsibilities for the good of patients and in the best interests of patients. A patient is in an inferior position to a health care provider, and must completely trust the health care provider.
3. A.I. knew that Z.R. and M.W. were vulnerable, because he administered prescription opioid medications to each of them for managing their pain, and was aware of the sedating effects that those medications were having on Z.R. and M.W. He took advantage of their vulnerable states when he sexually assaulted them during his nursing shift of June 11 and 12, 2012. Z.R. and M.W. had diminished capacities to consent.
4. The offences happened at night, nobody was in the vicinity of Z.R.’s and M.W.’s hospital rooms when A.I. committed these offences, and Z.R. and M.W. were vulnerable to A.I. in their hospital rooms where they should have been able to trust that they would be secure and safe.
EFFECTS ON Z.R. and M.W.
[31] After the offence occurred, Z.R. lost her sense of security, confidence, self-esteem and trust. She was fearful and felt vulnerable in the community, and is mistrustful of health care services’ ability to protect her and her family members when they need health care.
[32] Likewise, M.W. experienced a loss of self-confidence, lost faith in the medical system, resisted returning to the hospital and was very fearful when she had to return to the hospital to receive health care. Her family members were also negatively affected by this offence.
[33] Each of Z.R. and M.W. has received counselling to work toward recovering from this offence.
WHAT I HAVE CONSIDERED FOR IMPOSING A.I.’S SENTENCE
[34] For imposing sentence for you A.I., I have taken into consideration:
1. the sentencing objectives and principles set out in ss. 718 through 718.2 of the Criminal Code;
2. all submissions provided by Crown and your defence counsel;
3. the cases provided by them;
4. the recommendations set out in your pre-sentence report, psychological assessment and technical suitability report;
5. your aggravating and mitigating circumstances;
6. the positive letters of support for you from members of the community; and
7. the victim impact statements of Z.R. and of M.W.
DEFENCE COUNSEL’S REQUEST FOR CONDITIONAL DISCHARGES
[35] Regarding defence counsel’s request for conditional discharges, we heard today from the Crown and from defence counsel. I have taken their submissions into consideration, along with the cases of R. v. Falofield, (1973), 1973 CanLII 1412 (BC CA), 13 C.C.C. (2d) 450; also Norberg v. Wynrib, 1991 CanLII 7424 (SCC), [1992] 2 SCR 224; and R. v. Ashley-Pryce, supra.
[36] Defence counsel reminded me this morning of his submissions that he made previously at our last hearing when he asked that A.I. be conditionally discharged for each count. Defence counsel’s submissions today included:
1. We heard about A.I.’s interests.
2. A.I.’s spouse, children, extended family and members of his Church congregation will experience hardships if A.I. is sentenced to jail, or is not conditionally discharged.
3. It is highly unlikely that A.I. will be hired as a nurse again.
4. He is working in the farming industry.
5. A.I. should not be left with the stigma of being convicted of sexual assaults.
6. Deterrence can be achieved through A.I. writing letters of apology, completing community work service and so forth.
[37] I cannot agree that a conditional discharge is in the public’s interest. As a health care professional A.I., you breached the trust put in you by these victims, who you knew were vulnerable with very serious medical conditions and who required some of the heaviest pain medications available to alleviate their pain, and to whom you administered those prescribed pain medications and knew the sedating effects that those opioid medications were having on Z.R. and M.W.
[38] In my view, you will have to serve a term of imprisonment for each offence that you committed with a period of probation to follow, to satisfy the sentencing objectives and principles required by the Criminal Code, including to denounce your behaviour, deter you specifically and other members of the healthcare profession from engaging in this kind behaviour, and also to assist with your rehabilitation.
SENTENCES
[39] A.I., I am sentencing you to a term of imprisonment for 6 months for each count of sexual assault, to be followed by probation for 18 months.
[40] I have considered s. 742.1 of the Criminal Code as it existed when you committed these offences and am satisfied that you can serve these jail sentences in the community as Conditional Sentence Orders because:
1. these offences, while defined as serious personal injury offences under s. 752 of the Criminal Code, were not prosecuted by indictment and did not have a maximum term of imprisonment of ten years or more;
2. these offences are not punishable by minimum terms of imprisonment;
3. these jail sentences are less than 2 years in length; and
4. I am satisfied that you serving these jail sentences in the community as Conditional Sentence Orders will not endanger the safety of the community and would be consistent with the fundamental purposes and principles of sentencing set out in ss. 718 through 718.2 of the Criminal Code.
[41] Considering the totality of these sentences, I will permit you to serve each 6 month Conditional Sentence Order concurrently.
[42] In R. v. Proulx, 2000 SCC 5 (CanLII), 2000 S.C.C. 5, the Supreme Court of Canada described the difference between Conditional Sentence Orders and Probation Orders:
“unlike probation, which is primarily a rehabilitative sentencing tool, a conditional sentence is intended to address both punitive and rehabilitative objectives. Accordingly, conditional sentences should generally include punitive conditions that restrict the offender's liberty. Therefore, conditions such as house arrest or strict curfews should be the norm.”
[43] I have considered submissions from the Crown and from defence counsel regarding conditions to be imposed for your Conditional Sentence Orders and Probation Orders. The Crown submitted that protection of the public requires that I not permit you to engage in nursing or other healthcare services until you have completed the Sex Offender Treatment Program and the Sex Offender Maintenance Program to the satisfaction of your Conditional Sentence Supervisor and your Probation Officer, respectively. Considering all of your circumstances, and having found you to pose a low risk of reoffending, in my view conditions can be imposed for your community-based sentences that will permit you to engage in nursing and other healthcare services only with the consent of your Conditional Sentence Supervisor or Probation Officer and also only while you are in the presence of a supervising adult of whom your Conditional Sentence Supervisor or your Probation Officer has approved in writing prior to you providing nursing or other healthcare services. I anticipate that your Conditional Sentence Supervisor and Probation Officer will not permit you to begin providing nursing or other healthcare services in the community until you have completed the Sex Offender Treatment Program and the Sex Offender Maintenance Program to the satisfaction of your Conditional Sentence Supervisor and your Probation Officer.
[44] For each of the Conditional Sentence Orders, you must comply with conditions. The mandatory conditions for your Conditional Sentence Orders are:
1. Keep the peace and be of good behaviour.
2. Appear before the Court when required to do so by the Court.
3. You must report to a Conditional Sentence Supervisor at 2610 Mary Hill Road, Port Coquitlam, BC within two (2) working days and thereafter when required by the Supervisor and in the manner directed by the Supervisor or other corrections official.
4. Remain within the Province of British Columbia, unless written permission to go outside of the province is obtained from the Court or the Supervisor.
5. Notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
[45] The optional conditions for your Conditional Sentence Order are:
1. You shall keep your Conditional Sentence Supervisor advised of your current residential address, your current and operating telephone number with which you can be contacted at all times as well as your employment circumstances including the location of your employment and the hours of your employment.
2. You cannot contact Z.R. or M.W. either directly or indirectly.
3. You must not attend within 200 meters of any location of residence, employment or education of Z.R. or M.W. of which you are aware.
4. You will attend and participate in psychiatric and or psychological assessments, counselling or educational programming as may be directed and to the satisfaction of your Conditional Sentence Supervisor that includes but is not limited to the Sex Offender Treatment Program and the Sex Offender Maintenance Program.
5. Within the first 4 months of these Conditional Sentence Orders you will complete 80 hours of Community Work Service to the satisfaction of your Conditional Sentence Supervisor.
6. You shall remain within the premises of your residential address of 11581 - 240th Street, Maple Ridge, BC V2W 1A3 at all times except: A) for medical emergency experienced by you or your immediate family member who resides with you at your residential address, B) with the written permission of your Conditional Sentence Supervisor which written permission you must obtain from your Conditional Sentence Supervisor before you leave your residential premises. Your Conditional Sentence Supervisor's written permission must contain specific dates and times when your Conditional Sentence Supervisor has permitted you to be outside of your residential premises. You must carry a copy of your Conditional Sentence Supervisor's written permission with you at all times when you are outside of your residential premises. Your Conditional Sentence Supervisor may grant written permission for you to be outside your residential premises for purposes including: 1) travelling directly to and from your place of employment or education; 2) attending Church services and activities; 3) attending your children’s school functions and activities; 4) completing your Community Work Service; and 5) for a maximum of 6 hours per week to purchase groceries, household items, attending medical and dental appointments for you and your family members.
7. You shall present yourself at your front door of your residential premises at the request of a Peace Officer to verify your compliance with the curfew conditions.
8. You cannot engage in any type of employment or volunteer work to provide nursing services or other health care services unless your Conditional Sentence Supervisor consents and unless a supervising adult over 18 years of age is physically present. Your Conditional Sentence Supervisor must approve in writing that supervising adult in advance of you providing any nursing or other health care services while in the physical presence of that approved supervising adult. You must obtain and possess your Conditional Sentence Supervisor's written approval of that supervising adult before you commence providing any nursing or other health care services while in the physical presence of that approved supervising adult.
[46] For each of the Probation Orders, you must comply with conditions. The mandatory conditions for your Probation Orders 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.
[47] The optional conditions for your Probation Orders are:
1. You must report to a Probation Officer at 2610 Mary Hill Road, Port Coquitlam, BC by 4:00pm on the second business day after you have completed serving your Conditional Sentence Orders in the community or after you have been released from jail if your Conditional Sentence Orders are terminated and thereafter as directed.
2. You shall keep your Probation Officer advised of your current residential address, your current and operating telephone number with which you can be contacted at all times as well as your employment circumstances including the location of your employment and the hours of your employment.
3. You cannot contact Z.R. or M.W. either directly or indirectly.
4. You must not attend within 200 meters of any location of residence, employment or education of Z.R. or M.W. of which you are aware.
5. You will attend and participate in psychiatric and or psychological assessments, counselling or educational programming as may be directed and to the satisfaction of your Probation Officer that includes but is not limited to the Sex Offender Treatment Program and the Sex Offender Maintenance Program.
6. You cannot engage in any type of employment or volunteer work to provide nursing services or other health care services unless your Probation Officer consents and unless a supervising adult over 18 years of age is physically present. Your Probation Officer must approve in writing that supervising adult in advance of you providing any nursing or other health care services while in the physical presence of that approved supervising adult. You must obtain and possess your Probation Officers written approval of that supervising adult before you commence providing any nursing or other health care services while in the physical presence of that approved supervising adult.
[48] Also, I must impose the following mandatory Orders:
1. Sexual assault is a primary designated offence for the purposes of s. 487.051(1) of the Criminal Code, so I am imposing the mandatory Order for count 1 and count 2, authorizing a sample of your DNA to be taken for analysis and registration in the national DNA database. You will attend at the Ridge Meadows RCMP detachment located at 11990 Haney Place, Maple Ridge, BC (telephone number 604-463-6251) on August 14, 2014 at 9:00am.
2. Pursuant to s. 109 of the Criminal Code, I am also imposing the mandatory firearms prohibition Order for count 1 for a period of 10 years.
3. Pursuant to s. 490.012(1) of the Criminal Code I am imposing Orders in Form 52 for count 1 and 2, requiring that you comply with the Sex Offender Information Registration Act for life as specified in s. 490.013(2.1) of the Criminal Code.
[49] Because of the date of this offence for which you have been found guilty, I have discretion to order that you pay the Victim Fine Surcharge or I can exempt you from paying the Victim Fine Surcharge. A.I., I am exempting you from paying the Victim Fine Surcharge because your earning capacity has diminished and I recognize that the financial circumstances of your family and you may be difficult as a result of you committing and being found guilty of these offences.
[50] In summary, in my view these sentences sufficiently satisfy the sentencing objectives and principles as required by ss. 718, 718.1 and 718.2 of the Criminal Code, including:
1. pursuant to s. 718:
a. denunciation for you breaching your position of trust and for committing these offences against victims who you knew were vulnerable;
b. specific deterrence for you and general deterrence, especially for professional caregivers;
c. assisting in your rehabilitation,
d. providing reparations for harm done to Z.R. and to M.W. and to the community;
e. promoting a sense of responsibility in you;
f. acknowledging the harm done to Z.R. and to M.W. and to the community;
2. pursuant to s. 718.1:
a. proportionality to the gravity of these two offences and the degree of your responsibility for committing these two offences; and
3. pursuant to s. 718.2:
a. consideration of the aggravating and mitigating circumstances for you;
b. parity; and
c. restraint.
The Honourable Judge Garth Smith
Provincial Court of British Columbia