IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Accused J.A.V.C. and D.A.C. are respectively the father and mother of a child who has been identified in these proceedings as C.C. In court file 79846-1, both of the Accused have pled guilty to the offence charged in count one of that information, namely that each of them, between May 8, 2010 and August 31, 2013, sexually assaulted C.C., contrary to section 271 of the Criminal Code. This continuing offence began at a time when C.C. was just 13 years old, shortly before her fourteenth birthday.

[2]           The Accused D.A.C. is also charged, in court file 80132-1, that on or about November 3, 2013, she wilfully attempted to obstruct, pervert or defeat the course of justice by interfering with or misdirecting a police investigation, contrary to section 139 of the Criminal Code.

[3]           The information (the formal charging document) was sworn on file 79846-1 on September 5, 2013, and on file 80132-1 the information was sworn on November 6, 2013. On October 27, 2014, the day on which a preliminary inquiry was scheduled to begin on court file 79846-1, the Accused entered their guilty pleas. Sentencing in this matter was adjourned over and the Probation Office was directed to prepare a Pre-Sentence Report for each Accused. Those reports have now been completed.

[4]           An order has been made in this matter under section 486.4 of the Criminal Code directing that any information that could identify C.C. shall not be published in any document or broadcast or transmitted in any way. That order remains in effect.

[5]           A sentencing hearing commenced on July 17, 2015. At that time counsel for the Accused requested an adjournment of the sentencing hearing, citing the reason as some surprise over the Crown’s sentencing position. The Crown opposed the adjournment application, in part because C.C. had psychologically prepared herself to present her Victim Impact Statement and adjourning sentencing would be unfair to her. In the interest of balancing the rights of the victim of this offence with the rights of the Accused under the Canadian Charter of Rights and Freedoms, I directed that the Crown would proceed with its submissions on sentencing and that C.C. could present her Victim Impact Statement, and that the Accused could make their submissions on sentencing at a later date. Sentencing submissions concluded on July 29, 2015.

[6]           In the course of setting out the facts on which it was relying in this matter, counsel for the Accused objected to some of the circumstances alleged by Crown Counsel. This was somewhat surprising, given that the Pre-Sentence Reports for both Accused state that each agreed “with the circumstances as outlined in the police report” and that the particulars were provided well in advance of the sentencing. The matter was stood down and counsel were able to resolve the issue to their satisfaction.

[7]           These offences first came to light in September of 2013. A social worker with the Ministry of Children and Families became aware of an allegation that the victim C.C. has been coerced to participate in sexual activity with both of her parents. The child was interviewed first by the social worker, and later by Constable Chris Troughton of the Abbotsford Police Department and in the course of those interviews, she disclosed that when she was 13 years of age, her parents had convinced her to participate in sexual activity with them. Although the child’s participation was not the result of immediate directed violence against her, it would be wrong to describe the activity as consensual on C.C.’s part, given her age and given the misplaced trust that she had in her parents. The victim later stated in her Victim Impact Statement that as a thirteen year old at the time, she could not confront her father because of his size and his temper.

[8]           No doubt it has been demeaning and humiliating for C.C. to hear the sexual activity described in court during the submissions on sentencing. It is a testament to her courage and character that she was able to attend the first day of the sentencing hearing and to have her voice heard as she presented her Victim Impact Statement.

[9]           The Accused were pernicious in the manner that they groomed their child to participate in the sexual activity. They did so under the guise of supposedly educating their child about sex, convincing her that it would be best for them to demonstrate sexual activity in the child’s presence. C.C. was encouraged to become a participant in what the Accused perversely termed as “family fun”.

[10]        The sexually assaultive behaviour which the Accused J.A.V.C. perpetrated on his daughter included genital touching, oral sex and full sexual intercourse, including ejaculation. J.A.V.C. took his daughter’s virginity. The Accused D.A.C. committed acts of oral sex and digital penetration and penetration using a plastic vibrator. Sometimes this took place while J.A.V.C. watched from a computer chair, while naked. Counsel for the Accused J.A.V.C. states that his client agrees that there were two incidents of sexual intercourse and that there were between ten and twelve other incidents of sexual conduct between his client and this child over the course of one of the years covered by count one.

[11]        C.C. was told by her parents that she could never tell anyone about the activity. She described the activity as occurring frequently, although the activity that took place directly with her mother was much less frequent. This activity continued for a period of approximately three years before the intervention of the Ministry and the Abbotsford Police Department put an end to it.

[12]        In mid-2013, the Accused J.A.V.C. was charged with assaulting D.A.C. and he was under a non-contact order with her that required him to live apart from her. While the Accused were separated from one another, the sexual activity continued, though not with both Accused being present at the same time.

[13]        The Accused were formally charged with a number of offences against their daughter on September 5, 2013. Each was released on a recognizance with a number of conditions that included an order that they have no contact with their daughter. C.C. was placed in foster care. It was an extremely difficult time for the child, who was now separated from the only family she had. In her Victim Impact Statement, C.C. states that she was also shunned by friends, and was in a very vulnerable position.

[14]        On November 3, 2013, C.C. happened to be at the same Dollar Store that her mother was also at. When C.C. noticed her mother, the Accused D.A.C., she walked up to her mother and hugged her and began to cry. In that encounter, the Accused D.A.C. told C.C. that her parents missed her, that they loved her and that they were not mad at her for what had happened. Unfortunately, D.A.C. did not leave things at that. She told her daughter that her grandmother was upset over what had happened and that the grandmother was dying of cancer and probably wouldn’t live long. She also told the child that her father, the Accused J.A.V.C., had attempted suicide.

[15]        D.A.C. then told the child, “If you have to testify, don’t tell the truth. We could go to jail for fourteen years.” D.A.C. then used her phone to place a call to the Accused J.A.V.C. and had her daughter talk to him. The incident was later reported to police.

[16]        C.C. is now 19 years of age. She has been under a tremendous emotional strain. She has been horribly betrayed by the two adults she trusted most to protect her. Despite the dysfunction that she has been raised in, C.C. presents herself as a very intelligent, articulate and thoughtful young woman. Her courage in cooperating with the prosecution of these offences is inspiring. By doing so, she honours the many other children who are victimized and who are unable to protect themselves or to speak up for themselves.

[17]        In her Victim Impact Statement, C.C. describes the grief and pain that she suffered and continues to suffer because of the loss of her family, and because of the behaviour of her former friends who have unfairly shunned her, treating her as if she is somehow to blame for the hurt caused by her parents. As an only child, she mourns the loss of her parents and of the proper kind of love and nurturing that they have denied her. She also misses the love and affection given to her by her extended family.

[18]        C.C. describes the fears that she has had to face, including her fear of her father’s wrath, and the fear that she would not be believed and would be victimized a second time through the court process. In her statement she says of her parents:

[19]        J.A.V.C. is now forty years of age. His pre-sentence report describes his being brought up in a dysfunctional home with an abusive alcoholic father. He suffered physical abuse as a child, both at the hands of his father and from another boy at school. He told the report writer that he was sexually abused as a young boy by an older boy, but that boy was never charged. When he was 19 he married his co-accused. He has been diagnosed with Attention Deficit Disorder. He denies any issues with alcohol or drug abuse and this does not appear to have been a factor in the commission of these offences.

[20]        Following his arrest on these charges, J.A.V.C. attempted to take his own life. He was hospitalized as a result and now takes medication for depression. In September of 2013 he was convicted for assaulting his co-accused and was given a suspended sentence and placed on probation for a year.

[21]        Concerning J.A.V.C.’s attitude towards this offence, the report writer states:

[22]        It is tragic and hard to understand why this Accused did not possess this insight as to how this offence would harm his child before doing the things that he chose to do.

[23]        On submissions on behalf of J.A.V.C., his counsel Mr. Sidhu referred to a number of authorities in which sentences of between three and five years were imposed for sexual offences in cases where the offender was in a position of trust with the victim. Counsel argues that a sentence in the range of three years to forty months is appropriate. He notes the following mitigating circumstances:

[24]        Speaking on his own behalf, J.A.V.C. read a letter intended for his daughter in which he apologized for what he has put her through, while acknowledging the emptiness of the words “I’m sorry” in proportion to the degree of injury that the child has suffered. He expressed the hope that he could get the help he needs in the course of his sentence, while expressing the concern that the federal prison system may not be the best place to get that help. He also expressed his wish that some sort of victim-offender reconciliation may someday be possible.

[25]         D.A.C. is forty-seven years of age. Like her husband, she too was raised in an alcoholic home, but was not physically abused in that home. She told the report writer that she suffered sexual abuse from a cousin over a prolonged period of time. That person was never criminally charged and this Accused never received any counselling.

[26]        D.A.C. is of Metis ancestry, but she told the report writer that she has had no dealings with her culture and has no interest in doing so. She has no previous criminal record. Like her husband, she also attempted to take her own life, but did so before this offence was discovered. Also like her husband, she denies any issues with alcohol or drug abuse.

[27]        In his submissions, D.A.C.’s counsel, Mr. Shore, set out in detail his client’s background, which includes her being raised in a home with an alcoholic father and her being sexually exploited by two of her male cousins. Her mother died when she was twenty years of age and her maternal grandfather died at around the same time.

[28]        D.A. C. describes her co-accused J.A.V.C. as having an explosive temper. She also describes him as being very demeaning to her, unfaithful in their marriage and physically violent with her. She says that he once gave her two black eyes and attacked her on another occasion with some sort of hammer.

[29]        The writer of D.A.C.’s Pre-Sentence Report makes the following comments concerning D.A.C.’s attitude and understanding of the offences that she has committed:

[30]        Mr. Shore urges the imposition of a non-custodial sentence in the form of a three year suspended sentence with very strict conditions. In doing so, he stresses the fact that there is an over-representation of Aboriginal offenders in the nation’s jails and argues that in sentencing his client for these offences, it is not necessary to incarcerate her. He adds that none of the sentencing authorities state that the principles of sentencing for this type of offence apply in the same manner to female offenders and he asks that boldness be shown in this case by imposing a non-custodial sentence. He notes the following as mitigating circumstances which pertain to his client:

[31]        Mr. Shore also asks for a sentence which would leave open the possibility of some form of victim-offender reconciliation. He argues that the Victim Impact Statements suggest that the victim of these offences is open to contact with his client and says that a jail sentence would frustrate this.

[32]        When she was given the opportunity to address the court, D.A.C. said that she was extremely sorry for the harm that she caused her daughter, that she regrets her actions and that she now realizes that she did more harm to her child than she thought she did at first. She expressed the hope that her daughter would find it in her heart to forgive her and said that it was extremely difficult for her not to see her child.

[33]        In considering the explanation given by each Accused for how this offence came about, it is difficult to comprehend how, at the time of these offences, any right-thinking parent or adult could see what occurred here as being somehow educational, healthy or non-damaging to the well-being of this child, or how this was at all compatible with the responsibility of parents to protect and nurture their young child.

[34]         Section 718 of the Criminal Code, sets out what the fundamental purpose of sentencing someone is. That purpose is contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

[35]        Where an offence involves the abuse of a child, as in this case, Parliament has directed in section 718.01 of the Criminal Code that the primary considerations of a sentence shall be to denounce and deter such conduct. In R. v. Allen 2012 BCCA 377, the British Columbia Court of Appeal held that this section compels a sentencing judge to give primary consideration and importance to the objectives of denunciation and deterrence in imposing a sentence involving the abuse of a child.

[36]        Section 718.1 of the Code requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Code provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. The abuse of a person under the age of eighteen is deemed to be an aggravating circumstance. It is also deemed to be an aggravating factor for an offender to abuse a position of trust or authority over his or her victim. Both of those considerations apply to the circumstances of these offences. That section of the code also makes it an aggravating circumstance where, as here, the offence has had a significant impact on the victim, having regard to the victim’s age and personal circumstances.

[37]        This same section of the Code directs that an offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances. It also provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders and that this is especially relevant in the case of Aboriginal offenders. In R. v. Gladue 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, the Supreme Court of Canada explained how this section should be applied in cases where the sentencing considerations of denunciation and deterrence are paramount. Chief Justice Lamer stated:

[38]        Section 718.2 of the Code also directs that “a sentence should be similar to sentences imposed on similar offenders committed in similar circumstances. In cases where children are subjected to repeated abuse to the degree that C.C. has been harmed in this case, by persons that the child ought to be able to trust and rely on for protection, society’s abhorrence of such conduct almost always demands that a penitentiary sentence be imposed. This is called for, not from any sense of vengeance or inflamed sensitivity, but to strongly denounce this kind of conduct and deter others who contemplate this kind of conduct.

[39]        The Court of Appeal of this province, in R. v. T.A.D. (1995) 68 B.C.A.C. 236, held that where there is prolonged and continuing sexual abuse of a child by a person responsible for protecting that child, a sentence of three years was inadequate to address the need for proper denunciation of this type of crime. Chief Justice McEachern said that “the need for proper denunciation may in a case such as this displace the natural tenancy of a compassionate judge to extend a measure of mercy to an accused person.” He added that the continuation of this type of offence over a period of years requires a sentence in the range of five to nine years. In this case the Crown submits that the proper sentence should be from six to seven years for the Accused J.A.V.C. and a global sentence of four to five years for D.A.C.

[40]        Similarly, in R. v. R.M.D. 2014 BCCA 56, our Court of Appeal reiterated the principle that in imposing sentences for offences involving the abuse of a child, “primary consideration must be given to the objectives of denunciation and deterrence.” There, the court added that parents or persons who stand in the place of a parent must receive significant sentences for sexual offences committed against their children. (See paragraphs [13] to [16] and [24].)

[41]        The cases clearly set out the principle that in order to deter other like-minded persons from considering the commission of this type of offence, and to strongly denounce this type of conduct and express the strong sense of abhorrence for it, a penitentiary sentence is called for. A sentence in the provincial range or a probationary or other community-based sentence will almost always fail to adequately address the paramount sentencing considerations of deterrence and denunciation. I conclude that the imposition of any sort of probationary sentence for this type of breach of trust and this type of harm to a child should not be imposed in this case. A probationary sentence is especially inappropriate here where D.A.C. has attempted to interfere with a vulnerable witness in direct violation of another supervisory order of this court.

[42]        In the course of their submissions, each counsel referred to a number of authorities involving offenders sentenced for sexual offences against children. In almost each case, the facts of these offences were retold in excruciating detail for the purpose of either arguing for parity of sentencing or to distinguish the facts in those cases from the ones now before me. However in going through this exercise, it became painfully apparent how frequently the criminal courts of this nation are confronted with having to address sexual offences against children, how often children are exploited in cruel and horrible manners by those they trust to protect them and why it is essential for denunciation and deterrence to be paramount sentencing considerations.

[43]        I would venture a guess that every criminal court judge sees far too many informations alleging sexual assault committed against children. First and foremost the lasting physical, mental and emotional harm to children who are victims of these offences is the greatest tragedy. These offences are also vicariously traumatic to those who have to investigate them, to those who have to counsel the victims, and to all of the participants in the justice system who strive to bring a sense of closure to them that is usually an inadequate one. All of these factors underscore the need to prioritize deterrence and denunciation as sentencing considerations. The law must be such that those out there who consider using children as the means for their sexual gratification, especially children who look to them for protection, can expect a lengthy jail sentence to be the consequence of that choice.

[44]        The offence of obstruction of justice by interfering with a witness is also an offence which usually attracts a jail sentence. The maximum sentence for this offence is one of ten years. In R. v. Mavros 2014 BCSC 2347, Justice Ehrcke of the BC Supreme Court said that this is an offence which generally attracts a sentence of consecutive jail time. Doing otherwise fails to acknowledge the serious and separate harm that this offence causes to the administration of justice. (See paragraph [103]).

[45]        As previously stated, the sentencing provisions of the Criminal Code and the case law are clear in their direction to sentencing courts that the paramount considerations in sentencing offenders for repeated sexual abuse of a child are deterrence and denunciation, especially where the offender is in a position of trust towards the child. The jurisprudence consists of a range of penitentiary sentences of between three and nine years, usually towards the higher end of that range.

[46]        Rehabilitation of offenders is a factor to be taken into account, but for those who repeatedly abuse children, sexually rehabilitative programs generally take place within the structure of a federal prison. The Pre-Sentence Reports state that for sexual offenders in the Federal Correctional System in this province, the process begins with an assessment of the offender that takes into account the offender’s criminal history, the factors which led to the offending, the offender’s mental health and any other criminogenic factors such as substance abuse. This can take between 70 and 90 days. The offender is then directed to the appropriate level of program that is specific to the offender’s needs. In the case of female sex offenders, there is no program offered for them in provincial institutions or in the community, other than individual counselling through Forensic Services.

[47]        As one counsel said in his submissions, the aggravating factors in this offence are obvious and glaring. The offence of sexual assault was repeatedly committed against a child by her parents, persons in a position of trust and authority over the child. The child has suffered grave emotional and mental harm and her sense of self-worth, value and sexual integrity have been severely injured. This harm was aggravated when the Accused D.A.C. sought to make the child feel responsible for the fact that she and her co-accused were facing the prospect of a lengthy jail sentence.

[48]        In considering the mitigating circumstances of these offences, I take into account that both of the parties have entered a guilty plea, which has spared the Complainant the requirement of having to testify. This was not an early guilty plea. A preliminary hearing was set in January of 2014 for October of that year and up until the day that the preliminary inquiry was scheduled to begin, the child believed that she would have to testify in court. Even after the guilty pleas were entered, and after each Accused had told their Pre-Sentence report writer that they agreed with the circumstances set out in the police report, it appeared for a brief time that the child might still have to testify in the context of a sentencing hearing.

[49]        I take into account that each Accused has had a difficult childhood and that each has been victimized sexually. I also take into account that each has had difficulties with depression and other mental health issues and that these have taken each of the Accused to a place where each considered taking his or her own life.

[50]        I also take into account that, in the case of J.A.V.C., he has one previous criminal conviction, that being for assaulting his wife, and in the case of D.A.C., she has no previous criminal record.

[51]        I have considered D.A.C.’s Aboriginal background, though in my view, these offences fall within the category described by the Supreme Court of Canada in R. v. Gladue when the court said that, for more serious offences, the practical reality is that the terms of imprisonment for Aboriginals and non-aboriginals will be similar, if not identical. The fact is that both of these Accused, who profess to love their child, had a duty to protect her from the type of harm that she experienced. Neither did anything to protect their child. Neither came to their child’s rescue. It is always difficult to understand how one parent could harm a child in this manner. It is even more difficult to understand how both parents could allow this to happen. Each of the Accused has claimed that they love their daughter. Their actions do not match their words. They show them to be fiction. The time has now come for each Accused to be accountable for those actions.

[52]        I sentence J.A.V.C. to six years imprisonment for the offence of sexual assault. I sentence D.A.C. to four years imprisonment for the offence of sexual assault. I sentence D.A.C. to nine months for the offence of attempting to obstruct, pervert or defeat the course of justice. Her sentences are to be served consecutively.

[53]        Pursuant to section 487.051(1) of the Criminal Code, I order that a sample of the DNA of each Accused is to be taken for inclusion into the National DNA Databank. That sample is to be taken forthwith by a peace officer or some other person authorized under the Criminal Code to take that sample, and it is to be taken in one of the methods permitted under the Code.

[54]        I also order that, pursuant to section 490.012(1) and Form 52 of the Criminal Code, each Accused shall be required to comply with the Sex Offender Information Registration Act and that, pursuant to section 490.013(1)(b), the order shall be for a term of twenty (20) years.