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R. v. Bolderson, 2018 BCPC 268 (CanLII)

Date:
2018-10-18
File number:
17150-2-C
Citation:
R. v. Bolderson, 2018 BCPC 268 (CanLII), <https://canlii.ca/t/hvtd7>, retrieved on 2024-03-29

Citation:

R. v. Bolderson

 

2018 BCPC 268

Date:

20181018

File No:

17150-2-C

Registry:

Port Hardy

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

 

REGINA

 

 

v.

 

 

EDWARD GARY BOLDERSON

 

 

 

 

 

REASONS FOR SENTENCE

OF THE

HONOURABLE JUDGE FLEWELLING

 

 

Publication Ban under s. 486.4 CCC

 

 

Counsel for the Crown:

A. Taylor

Counsel for the Defendant:

J. Mills

Place of Hearing:

Port Hardy, B.C.

Date of Hearing:

September 7, 2018

Date of Judgment:

October 18, 2018

 


Introduction:

[1]           Mr. Bolderson has pleaded guilty to the following charges:

                    Between Jan 1, 2015 and February 11, 2018 he touched MB for a sexual purpose; and

                    On February 11 2018 he touched JW for a sexual purpose. 

[2]           Both MB and JW were under the age of 16.  Both offences are contrary to s. 151 of the Criminal Code.

[3]           The sole issue for the court is to determine what, in all the circumstances, is a fit and just sentence.

Background:

[4]           Crown has proceeded by indictment which is reserved for offences the Crown views as more serious.  The maximum sentence for each of these offences is 14 years.  The previous mandatory minimum sentence of one year for the offence of sexual interference of a person under the age of 16 was held to be contrary to the Canadian Charter of Rights and Freedoms struck down in R. v. Scofield, 2018 BCSC 419.

[5]           Counsel filed an agreed statement of facts.  Mr. Bolderson admits that in relation to MB:

                    on multiple occasions - approximately ten times and over a period of approximately two years, he licked her vagina and belly.

                    MB often went to Mr. Bolderson’s residence and called him Grandpa Gary.

                    She regarded him as a father figure particularly as her own father had recently passed away.

                    She often went to Mr. Bolderson’s residence as he kept his house open to the kids in the neighbourhood.

                    Mr. Bolderson provided her with pop, snacks and any coins she found at his residence;

                    On at least one occasion, he provided money to her and her friends;

                    She never told her mother because she was afraid her mother would be mad at her.

[6]           Mr. Bolderson admits that in relation to JW:

                    MB brought her to Mr. Bolderson’s residence between 2pm and 6pm on February 11, 2018. 

                    MB, JW and Mr. Bolderson were on the bed in his bedroom. 

                    Mr. Bolderson was trying to make them laugh and licked JW’s stomach. 

                    While JW was naked from the waist down, Mr. Bolderson licked her stomach and vagina.  Afterwards, Mr. Bolderson got some food and played tag. 

                    MB told JW not to tell anyone about what had happened.

[7]           Mr. Bolderson was born on Feb 21, 1939 and is currently 79 years of age. 

[8]           MB turned 7 years old in the [omitted for publication] of 2016.  I do not know precisely when Mr. Bolderson actually started to sexually abuse MB, but she would have between somewhere between 6 or 7 and 8 years old.  JW was 9 years old.

MB:

[9]           MB provided a victim impact statement.  In it she expresses that she is afraid not only of Mr. Bolderson, but “other bad guys” living in her community and wants him to stay away from her.  She said that she didn’t want anyone to know what he did to her.  The statement is short and simple as would be expected from a 9 year old child.

JW:

[10]        Discussing this incident and the impact upon her causes JW distress and therefore her father provided a victim impact statement based on his observations.  The impact upon JW has been significant.  She is described as an outgoing, extroverted and friendly child before these events, but now is fearful and anxious.  This has caused her to miss her usual extracurricular activities and she asks family to go with her when she does attend.  JW has difficulty sleeping and often gets up complaining of an upset stomach.  She is afraid of seeing or having contact with Mr. Bolderson and has nightmares about being taken away from her family.  She needs extra reassurance and comforting from her parents at bedtime. 

[11]        She has become confused about sexuality and what is appropriate for adults to do with children and the offence “has shaken her understanding of safety and adult/child relationships.”  Her father says it is too soon to determine what longer term consequences will flow from this offence.

Mr. Bolderson:

[12]        I have had the benefit of a forensic psychological assessment and report conducted by Dr. Darcangelo and dated July 17, 2018 as well as a pre-sentence report authored by Adam Abraham dated July 3, 2018.

[13]        Mr. Bolderson is a retired tug boat operator.  He is divorced from his wife although they still maintain an amicable relationship.  They have two sons and he has a close relationship with them.  He has a 2 year old grandson and at the time of the reports, a 2 month old granddaughter.

[14]        He has a prior conviction from the United States for conspiracy to import marijuana in 2002 when he agreed to smuggle the drug into the US with his tug boat.  He served 46 months in custody.

[15]        Prior to his arrest for these offences, he lived alone in a mobile home in [omitted for publication] and plans to return there upon his release.  He is willing to live with his son in Vancouver if MB still lives close to his residence, although if MB and her family do not move, he would explore other housing options with his probation officer.

[16]        He has volunteered at the local foodbank and assists others with travel to appointments, mowing lawns, etc. and reports having many friends.

[17]        He has issues with his health and asserts this should be considered in assessing a fit sentence.  In 2014 he underwent prostate surgery and in December 2017 was advised that he needs additional surgery.  A consultation report provided by his Urologist Dr. Kinahan, indicates that, as is common for his age group, he has an enlarged prostrate and difficulties voiding.  He was prescribed medications and advised that surgical therapy may be needed.  Dr. Kinahan stated that Mr. Bolderson “has a catheter in once more, and is managing with this.”  An ultrasound was pending which has now been done and I expect a decision will be made about surgery in the near future.

[18]        Although his counsel says that Mr. Bolderson shouldn’t be faulted for answering the questions posed to him, nonetheless, his attitude about these offences is troubling. 

[19]        While acknowledging to Dr. Darcangelo that what he did was inappropriate and illegal, he also minimized his actions.  In relation to MB, he told Dr. Darcangelo, “she really liked it, and I enjoyed it.”  He described that he had known MB all her life.  He told Dr. Darcangelo that MB asked of him about sexual matters and described her as being 8 years old going on 20.  He believed that MB brought JW to his house so he could “do it to her -she wanted to watch me do her girlfriend.”  He also believes that JW was receptive to his advances.  

[20]        Mr. Bolderson justified his actions by suggesting that MB was also responsible for what happened.  His explanation is extremely disturbing given the fact that MB was a child between the ages of 6 to 7 and 8 and JW was only 9 years old at the time of the offences.

[21]        He has little, if any, insight into the consequences of his actions upon his victims.  When asked by Dr. Darcangelo, he indicated that MB was probably disappointed that she “told on me”.  He told Mr. Abraham (the author of the PSR) that the offence against JW was a “one time deal” and explained that he didn’t think his actions affected MB because she enjoyed it.  This is another example of Mr. Bolderson minimizing his actions and the harm he has caused to these children.

[22]        Dr. Darcangelo’s opinion is that Mr. Bolderson’s insight is only fair in that she describes that he did not have a good understanding of his motivation for these offences or his risk factors.  Her diagnosis “appears to be “Paedophilic Disorder” although Mr. Bolderson denied that he was sexually attracted to young girls.  As she stated, although he has admitted the offences “it is clear that he holds them somewhat responsible.”  She advised that it was possible that the offending behaviour was related to difficulty in coping with a number of changes in his life.

[23]        Based on her assessment of all the information including the risk factors, and while acknowledging that it is unusual for someone to develop this disorder at such an elderly age, she assessed Mr. Bolderson as a moderate case priority - the degree of effort or intervention it will require to address the individual’s risk factors and prevent the person from committing sexual violence in the future.

[24]        Mr. Bolderson was adamant that he does not need a sex offender program.  Dr. Darcangelo disagrees and advises that he would benefit from such a program to help him develop a better understanding of his risk factor and how to manage those.  Until then, his contact with female children should be supervised.

Position of Counsel

[25]        Crown seeks a global sentence of 40 months globally less credit for his time in custody (7 months = 10.5 as of the date of the sentencing hearing) bringing the additional new time to 29.5 months. 

[26]        He arrived at this assessment by allocating 36 months (3 years) for the offence against MB and a consecutive or additional 12 months (1 year) for the offence against JW. 

[27]        Based on the principle that totalling the two together would result in a sentence of 48 months (4 years) would be excessive (the principle of totality) he says the total sentence should be 40 months less credit for time already served in custody.

[28]        Crown counsel emphasizes that Mr. Bolderson’s need for treatment cannot be met by anything other than a federal sentence (of two years or more).

[29]        Defence counsel says the range globally is a sentence between 9 to 14 months sentence with, after credit for time already served, would be between time served and 3 months new time.  He emphasizes that the acts against MB and JW did not escalate into more intrusive acts.  He also refers to Dr. Darcangelo’s views that his behaviour may have been related to stress and poor coping skills and is not indicative of someone who has difficulty with impulse control.  He points out that Mr. Bolderson is at moderate risk, not high risk for further offending.

The Law:

[30]        Both counsel referred me to sentencing decisions involving sexual offences against children from other courts across Canada to assist me in determining a fit and just sentence in this case.

[31]        Because a sentence must be specifically tailored to the particular offender and the particular circumstances of the offence, the cases are helpful primarily for their general principles.  It is also accepted that ranges are only that - guidelines for the sentencing judge who must impose a sentence that is appropriate in the circumstances of the case under consideration.

[32]        The leading sentencing principles I have distilled from the case law are summarized as follows:

A.           A sentence must serve a number of objectives: an expression of the community’s disapproval of the person’s actions (denunciation), prevention of other similar offences by the person (specific deterrence), prevention of others from offending in a similar way (general deterrence), rehabilitation of the offender, encouraging the offender to take responsibility for his actions and make reparation for the harm caused.

B.           A sentence must also properly reflect the seriousness of the offence and the offender’s own level of moral culpability, keeping in mind that a sentence should be similar to sentences imposed in similar circumstances upon other offenders so there is consistency; a sentence should not be overly harsh and all alternatives other than jail should be considered. 

C.           Aggravating factors tending to increase a sentence as well as mitigating factors tending to decrease a sentence must be considered.

D.           A sentence must not be based upon sympathy or outrage, but must properly reflect and achieve the objectives of a sentence as expressed in our laws.

E.           As reflected in our law, denunciation and deterrence must be a primary sentencing consideration in offences against young children.  Children are vulnerable and are entitled to the full protection of the law.

Mitigating and Aggravating Circumstances:

[33]        Crown argues that the aggravating factors in MB’s case are:

                    her very young age;

                    she regarded him as a grandfather figure;

                    her father was very ill and had passed away making her particularly vulnerable to this kind of close relationship;

                    the assaults continued over an approximate time of 2 years and were numerous - about 10 times overall.

[34]        The aggravating factors in JW’s case are:

                    her very young age.

[35]        Crown says the mitigating factors in both cases are:

                    Mr. Bolderson’s guilty plea which has spared both victims the trauma of having to testify at a trial;

                    no prior record for this kind of offence;

                    he has been of previous good character in that he has been employed (although I acknowledge his previous criminal conviction in the US for which he was incarcerated for almost 4 years).

[36]        Defence counsel’s views about mitigating factors and aggravating factors are similar with the exception that he says Mr. Bolderson was not in a real position of trust such as that of a father or a tutor (as in some of the cases I reviewed).

[37]        The cases provided by the Crown were provided for general principles and guidelines to the court.  As acknowledged by Crown, the facts in those cases involved far more aggravating circumstances.  It is still helpful to set out some of those sentences including a brief summary of the circumstances:

                    5 years involving a child aged 3.5 years for a sexual assault that cased significant bodily harm to a 3 ½ year old (R v Miclash, 2001 BCCA 266);

                    4 years for sex assault of a step-daughter when she was between the ages of 6 and 12 involving digital penetration, oral sex upon her on one occasion, forced intercourse on one occasion and oral sex upon the accused (R v REL, 2010 BCCA 493);

                    4 years for sex assault of the accused step daughter when she was 14 and 15 years old which involved kissing, sexual touching, masturbation, oral sex and rubbing his penis against her vagina once or twice a month over a period of 18 months.  The accused admitted grooming the victim.  He did not receive the benefit of a guilty plea because the victim has to testify; (R v Worthington, 2012 BCCA 454).

                    A 2.5 year sentence for sexually assaulting the offender’s 10 year old step-daughter on one occasion by pulling down her pants and underwear, licking her vagina and making her lick his penis (R v SB 2017 CanLii 86654 Nfld PC).

[38]        Defence counsel also provided case law to support his view that a lower sentence is appropriate.  His authorities include the following sentences:

                    A 6 month Conditional Sentence Order was imposed for sexual assault on two 15 year old victims over a period of months which included fellatio, sexual intercourse; the accused had significant cognitive impairment and dysfunction - the court held that the range was 9 to 18 months but due to exceptional circumstances of both the offender and the offence, a lesser sentence was fit (R v. Scofield (2018) BCJ 185);

                    A Conditional Sentence Order for 45 days was imposed for sexual interference of a 14 year old student upon facts that are distinguishable from this case but there is a summary of a variety of sexual assault sentences in Ontario including a 3.5 month sentence on an offender who was in a relationship with the mother of the 13 year old victim for hugging, french kissing, touching her chest and licking her body (R v H (L) 2001 CarswellOnt 715 (S.C.J.));

                    A 9 month sentence for a 56 year old caregiver in a position of trust to the 15 year old victim; while in bed he gave her a massage, when both topless he touched and squeezed the victim’s breasts (R v ML [2016] O.J. No 5846 (S.C.J.));

                    A 90 day jail sentence served intermittently imposed upon a violin teacher for sexually assaulting his 10 to 12 year old student by kissing her on the lips several times over a period of about 2 years when he was 70 and 80 years old (R v LW, 2018 ONCJ 399);

                    A sentence of 14 months was imposed for luring a 13 to 14 year old boy over the internet and by text messages which involved some pornographic videos of the offender; deliberate and planned as well as grooming behaviour was a factor and it took place over a lengthy period of time (R. v. Shaw, 2018 BCPC 77);

                    A sentence of 4 years for sex assaulting a vulnerable 13 year old girl which involved digital penetration and full unprotected sexual intercourse concurrent to a 1 year sentence for juvenile prostitution (R v Yanulik, 2018 BCSC, 1361);

[39]        With the exception of the Yanulik case, the cases provided by defence involved acts far less intrusive than what occurred here and in the Scofield case, significant exceptional circumstances.

Discussion:

[40]        The starting point in any sentence for an offence that involved the abuse of a person under the age of eighteen years is that primary consideration must be given to the objectives of denunciation and deterrence of the conduct: s. 781.01 Cr. Code.

[41]        I found the comments by Saunders, JA in Worthington of further assistance and it forms the approach that a court must take when assessing an appropriate sentence for sexual offences against children.  At para 30, she referred to the following passage in R. v. O., 2012 BCCA 129, para. 75:

The language of s. 718.01 seems to be plain.  Parliament, making a clear statement addressed to the relative power positions of adults and children, the dependence of children, and the obligations of adults towards children, has assigned primary consideration to the objectives of denunciation and deterrence.  This plain message is noted in R. v. R.E.L., 2010 BCCA 493, 297 B.C.A.C. 28.  Accordingly, rehabilitation, while highly important, is given secondary status; it simply may not be the primary consideration: R. v. B.C.M., 2008 BCCA 365, 259 B.C.A.C. 222.

[42]        And at para 32 she stated:

It would be fair, I think, to describe s. 718.01 and the other augmented provisions for offences concerning abuse of children as an attempt by Parliament to re-set the approach of the criminal justice system to offences against children.

[43]        I also found the decision of The Honourable Judge Gorman in S.B. of assistance in focusing more clearly on the reasons why sexual offences against children are treated so seriously.  At para 93, citing comments by Abella J.A. (as she then was) in R. v. Stuckless (1998), 1998 CanLII 7143 (ON CA), 127 CCC (3d) 225 0Ont. C.A.) at para 44:

Sexual abuse is an act of violence.  When committed against children, the violence is both physical and profoundly psychological.  It is coercive and exploitive conduct, and represents the use of compulsion against someone who is defenceless.

[44]        In relation to MB and JW, I accept the aggravating and mitigating circumstances as summarized by Crown counsel.  While Mr. Bolderson was not a biological grandfather, I accept that he had known MB all her life and that he befriended her.  During submissions, Mr. Bolderson’s counsel advised that he took MB to see her father in the hospital before he passed away.  He played with her, gave her food and let her keep coins she would find in his home.  This certainly could be regarded as some efforts to “groom” MB and to encourage her to continue coming to his home. 

[45]        MB called him Grandpa Gary.  I find that he had a relationship of trust with MB and that MB was not only a very young child at the time of the offending, she was a vulnerable young child.  Her father was very ill and had passed away, a loss that would cause any young child to seek out and need attention and love from a person who was regarded as akin to a father or grandfather.  The fact that this relationship was encouraged by Mr. Bolderson further supports my view that the relationship ought to be characterized as one of trust. 

[46]        When an offender while committing an offence has abused a position of trust, it is an aggravating factor: s. 718.2 Criminal Code.

[47]        Mr. Bolderson’s acts against MB and JW were extremely intrusive and are to be distinguished from cases in which touching occurred over clothing or kissing or other less intrusive conduct.  It should be called what it is - he was engaging in oral sex with two young children, and as he stated, to Dr. Darcangelo in relation to MB - he enjoyed it.  Mr. Bolderson acknowledged that he knew that his actions were wrong but he continued his abuse of MB over approximately two years and abused JW in the presence of MB.  His level of moral blameworthiness is high.

[48]        I also accept that Mr. Bolderson, while pleading guilty and admitting these offences (which is a significant mitigating factor in that it spared these children the ordeal and further trauma of having to testify), deflects responsibility for his offending.  His comments to Dr. Darcangelo regarding why he committed his acts against MB and JW speak loudly and clearly to his lack of insight about why he sexually abused two young children and the amount of harm that he has caused them. 

[49]        Sexual offences against young children are a deep violation of a child’s physical, sexual and emotional integrity and can cause long lasting psychological harm.  It is too early to determine the longer term consequences of his actions and the emotional effects of his abuse on MB and JW.  It is well known that victims of sexual abuse feel shame and often have difficulty developing healthy and loving attachments in their own personal relationships.

[50]        MB told JW not to tell anyone and was afraid to tell her own mother.  It is very fortunate that JW told her parents about what happened.  If not for her courage to do so, the abuse certainly of MB may not have been discovered for a significant period of time.

[51]        To summarize, denunciation and specific as well as general deterrence are of paramount consideration in a fit and just sentence.  Mr. Bolderson’s rehabilitation also must be emphasized so as to prevent future offending.  It is imperative that Mr. Bolderson undergo further assessment and treatment to prevent him from harming other young children.

[52]        Dr. Darcangelo’s opinion is that Mr. Bolderson should participate in a sex offender treatment program and that it is imperative that he have a better understanding of his risk factors and how to manage those.  I concur with her recommendations.

[53]        Lastly, I have considered whether Mr. Bolderson’s medical condition should ameliorate a sentence.  In R. v. W.M., 2010 BCCA 370, the sentencing judge imposed a global 5 year sentence: 42 months sexually assault including sexual intercourse of the offender’s step-daughter when she was between 13 and 15 years old at least 5 times; and an 18 month consecutive sentence for sexually assaulting, sometimes once per week, his younger step-daughter when she was 11 to 12 years old.  The offender argued that a sentence should be more lenient due to severe a health condition (psoriatic arthritis) and that effective treatment could only be obtained outside prison.  The Court of Appeal upheld the sentence and agreed that his condition could not justify a reduction “given the circumstances of the offence.”  Levine J.A. noted that the prison officials were making efforts to ensure the offender had the best treatment possible. 

[54]        The court must balance Mr. Bolderson’s medical condition with the gravity of the offence and a serious medical condition does not necessarily mean that a sentence should be reduced - it is a matter for the discretion of the sentencing judge: R. v. Auckland, 2018 BCCA 171, para 36 citing R. v. Babcock, 2013 BCCA 368, para 12.

[55]        Corrections is mandated by legislation to provide access to all necessary and appropriate medical treatment and I accept this in reaching my decision.  While I understand that Mr. Bolderson is likely uncomfortable at the moment, if his treating physicians recommend surgery, I expect that Corrections will ensure that he is able to undergo this surgery in a timely manner and in the same manner as any other member of the public.

[56]        Given the seriousness of the offences and in all the circumstances including Mr. Bolderson’s medical condition, a reduction of sentence is not warranted.

Decision:

[57]        S.B. is the most similar case to the facts of this case.  There, Judge Gorman imposed a 30 month (2.5 year) sentence.  It was only one incident but the offender also asked the child to “lick” his penis, the victim was 10 years old, the offender was in a position of trust as her step-father.  The offence against MB was intrusive and took place about ten times and over a prolonged period of approximately two years, Mr. Bolderson was not in the position of a step-father and the offence did not involve MB performing any sexual acts upon him.

[58]        On Count 2, for the offence of sexual touching of MB, the sentence is 27 months.

[59]        On Count 4, for the offence of sexual touching of JW, the sentence is 12 months which is consecutive.

[60]        The total sentence I have imposed is 39 months.  Taking into account the principle of totality, and considering the most significant mitigating circumstance - his early guilty plea - I reduce the overall sentence to 30 months (2. 5 years).  He has been held in custody since February 13, 2018 in a remand setting and is entitled to credit for 8 months plus 4 months of enhanced pre-sentence credit for a total of 12 months pre- sentence credit.  That will give Mr. Bolderson new time to be served of 18 months.

[61]        This will be followed by a period of probation for three years with the following conditions:

                    the statutory conditions;

                    no contact or communication with MB or JW;

                    not to be within 100 metres of any residence, school or workplace of MB or JW;

                    reporting;

                    reside at residence approved in advance by probation officer;

                    no contact nor be alone with anyone who appears to be under the age of 16 years except if you have the written permission of your probation officer and you must carry that permission or in the immediate presence of an adult (and only after he or she has been informed by your probation officer of this order and your history as described in your criminal record, pre-sentence report and these Reasons for Judgment;

                    you must not engage in activities volunteer work or employment that could bring you in contact with persons under the age of 16 years without the written permission of your probation officer and when so engaged, you must carry this permission; and lastly,

                    counselling.

[62]        There will be the following ancillary orders:

                    DNA Primary grounds - s. 467.05;

                    SOIRA order - s. 490.012(1) for Life;

                    s. 743.21 no communication with MB or JW while in custody;

                    s. 109 - mandatory weapons prohibition for 10 years and life;

                    s. 161 prohibition order for 5 years prohibiting you from:

                     (a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre;

                     (a.1) being within 100 metres of any dwelling-house where MB or JW ordinarily resides;

                     (b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

                     (c) having any contact — including communicating by any means — with a person who is under the age of 16 years, except as approved in advance in writing by the court, your probation officer, a member of the RCMP, or the person to whom you are reporting under the SOIRIA.  A copy of the written permission must be carried with you.

BY THE COURT

 

 

_____________________________

The Honourable Judge B. Flewelling