IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           N.A.L. is charged with the sexual assault of D.L., his wife, on December 19, 2016. The Crown proceeded by indictment, and seeks a six month conditional sentence order recognizing that a jail sentence is appropriate in these circumstances. The Defence seeks a conditional discharge.

[2]           D.L. reported that she had been resting on their bed with their sleeping newborn nearby. She was only one month post-operative for her caesarean section and had been warned not to have sexual intercourse. N.A.L. attempted to impose himself upon her. When she protested and told him to stop, he insisted that he was going to take what is his. The struggle continued but N.A.L. did eventually stop after D.L. struck him.

[3]           D.L. did not report this sexual assault to the police until later when N.A.L.’s psychiatrist, Dr. Chale, called her to advise her that N.A.L. had homicidal thoughts that included D.L. and their newborn son.

[4]           The L. have been separated since this incident and D.L. has moved on to a new relationship. N.A.L. had a history of mental illness and prior instances of suicidal ideation. However, it is his diagnosis of Adrenoleukodystrophy (ALD) that compels the Crown to its sentencing position. It is identified in the pre-sentence report as a deadly genetic disease. While the Crown recognizes that the sexual assault is on the lower end of the range, Ms. Janse argued that the circumstances are aggravated by the domestic nature of the assault, the post-surgery condition of the complainant, and N.A.L.’s antiquated attitude toward his proprietorial rights over his wife.

[5]           D.L. advised the report writer in October 2017 that she was nervous about a new relationship, that she has consistently had nightmares and was regularly attending counselling monthly.

[6]           There were some troubling observations made in the pre-sentence report which was completed November 7, 2017. N.A.L. advised Patricia Reinsdorf, the report writer, that he loved jail because he was used to being told what to do and that he fit in. Ms. Stanford explained that this was in the context of a prior conviction, and not any desire to spend more time in jail.

[7]           Ms. Reinsdorf observed no victim empathy in N.A.L. He commented to Ms. Reinsdorf that D.L. had another boyfriend and had moved on as though he did not exist. He felt she just wanted to end the relationship with him and that he did not do anything forcible. It is an astonishing lack of insight. His wife was compelled to strike him to fend off his attack. She was in a vulnerable physical state. He then expressed homicidal thoughts toward her and their new born child. He sees how the matters before the court have drastically changed his life, and not how they must have impacted D.L.

[8]           The Crown sought a number of protective, denunciatory and rehabilitative terms in its submission for a CSO. Ms. Stanford argued that requiring N.A.L. to register as a sex offender was disproportionate to the allegations. He is a unique offender in unique circumstances. Accommodations should be made so that he can have contact with his child. A curfew is not necessary because he has been under a curfew for 13 months already. He is agreeable to counselling but had not considered a Rogers order that would require him to keep his mental health properly monitored. His medical condition makes it unnecessary for him to be bound by curfews, Rogers orders and otherwise.

[9]           N.A.L.’s explanation for his conduct toward D.L. grossly minimizes her experience of the events. He claimed to be advancing in an amorous way and did not realize his advances were unwanted. He did not retaliate when she punched him.  He has no explanation for his insistence that he would take what is his.

[10]        N.A.L.’s father had tried to have N.A.L. admitted to Royal Inland Hospital for depression on three occasions prior to the incident. N.A.L. was finally admitted in January 2017 where he remained until sometime in February 2017. 

[11]        Counsel also argued that D.L. did not report the incident to the police for 19 days. In that time, she had been texting him, hugging him and going for lunch. These were actions that counsel claim did not show fear or substantiate the impact of the offence claimed by D.L. Evidently, N.A.L. was blindsided by her wanting to leave the marriage but accepts her version of the events. He is upset that she moved on so fast and has not been there for him during his illness. In fact, it appears the only reason N.A.L. was charged with this offence is because D.L. was interviewed by the police after N.A.L. made homicidal comments directed toward her and the child. We are well past the point of condemning complainants for waiting to report sexual assault offences, especially by a spouse.

[12]        Ms. Stanford said it was difficult for N.A.L. to be empathetic toward the complainant because he has been depressed and stressed while adjusting to the terminal illness he has been diagnosed with. This does not on any level excuse his conduct toward her or his complete lack of insight for the impact his actions had on her.

[13]        Ms. Stanford provided a number of documents in support of N.A.L. The first is a letter from Catherine Cloutier, a counsellor at Sandstone Counselling Centre. Ms. Cloutier confirmed that she has been providing counselling services to N.A.L. over the course of several years as a counsellor at Thompson Rivers University and then again in her private practice at Sandstone Counselling Centre. She found N.A.L. to be a sincere and honest client suffering from symptoms of severe depression, suicidal ideation, anxiety and social isolation. She identified severe abuse and neglect in his family of origin, resulting in him being fragile but dedicated to working through his concerns and working toward decreasing his symptoms. As a result of suffering effects of physical and emotional abuse by his mother, he was left vulnerable to engaging in similarly abusive relationships in his young adulthood.

[14]        Ms. Cloutier stated that N.A.L. believed D.L. felt threatened by their counselling relationship and disapproved of him connecting with and establishing friendships with both men and women. This is, of course, one-sided and as reported by N.A.L. It does not appear Ms. Cloutier ever engaged with D.L. She also described a secondhand report of an incident where D.L. spoke harshly to N.A.L. in a public setting. This is nothing less than victim blaming. It is an appalling form of support for conduct that cannot be excused, no matter what one-sided views Ms. Cloutier may have formed of D.L.

[15]        There is also an e-mail from D.C. and L.C., who are an aunt and uncle to N.A.L. They described someone who is mannerly and willing to help. They have observed him struggle daily with pain but he pushes onward and reaches his daily goals. They described him as a very kind hearted person. While this assists in visualizing N.A.L. as it relates to his character in the community, it does not assist in addressing sentencing for an offence that so often happens behind closed doors - as in this case.

[16]        There is a reference letter from Y.C., who is N.A.L.’s grandmother. She finds it hard to understand his offence as he has always been well mannered and liked by all who knew him. She had never observed him hurt anyone. After being diagnosed in the Spring of 2016 with ALD, he became very depressed. He is in constant pain and has difficulty walking. She was dismissive of the medical profession who, when helping him with his depression, “just gave him pills to take”. She described N.A.L. as someone who is always kind and courteous to everyone.

[17]        N.A.L.’s younger brother, S.L., described a close childhood relationship marked by the usual rivalries, but observed N.A.L.’s patience and determination to see his younger brother grow. He said that his brother demanded the best out of him whether it was sports or academics, was always the person he could count on, and always watched out for him. He described his brother as always loyal, supportive and caring.

[18]        K.L. is N.A.L.’s father. He provided a description of the disease which will ultimately kill N.A.L. He described the pain that N.A.L. will experience now and in the future, his balance issues, and his exhaustion. K.L. described the emotional impact the charges and the disease have taken on N.A.L. who is devastated, severely depressed and heartbroken. His son had focused his energy on his wife and extended family, went to university to better himself, and persisted in getting top marks even after his diagnosis. These are helpful and compelling insights.

[19]        What is most telling and disturbing, though, is K.L.’s comment that “N.A.L. is unable to come to terms with his wife abandoning him and having his disease confirmed”.  He described the loss that N.A.L. has had because he has been unable to hold his infant son before his disease progresses to the point that he is physically unable to do so.

[20]        K.L. continued with a denial of N.A.L.’s capacity to harm anyone in this fashion:

[21]        K.L. highlighted that it is difficult enough to know that their son is going to die from this rare disease “but this charge on top of everything else is almost unbearable. Not sleeping for a year and thinking about this charge, 24 hours a day, has taken everything out of our family.” This may be so, but it is also devoid of insight into D.L.’s experience or of empathy toward her. In fact, nowhere in this letter is there any acknowledgment of N.A.L.’s wrongdoing or the considerable impact it has had on D.L.

[22]        Under s. 271 of the Criminal Code if the Crown proceeds by indictment, the maximum penalty is 10 years. There is no minimum sentence. The Crown started by proceeding by indictment and is now proceeding summarily. A conditional sentence order is available where the Crown proceeds summarily.

[23]        Section 718 of the Criminal Code provides as follows:

[24]        Section 718.2 also provides:

[25]        In other words, I must consider this an aggravating factor that the assault occurred in a domestic relationship. I must also consider that N.A.L. should not be deprived of liberty if less restrictive sanctions may be appropriate and I must consider all available sanctions other than imprisonment.

[26]        It is essential when sentencing a person who has committed a sexual assault against a domestic partner that general and specific deterrence be paramount considerations in sentencing. Assaulting a partner is a breach of trust and an aggravating factor.

[27]        A conditional discharge is one of the options the court must take into consideration where appropriate. The factors to be considered were set out in R. v. Fallofield, 1973 CanLII 1412 (BC CA), [1973], 13 C.C.C. (2d) 450 B.C.C.A.:

[28]        I have already addressed the fact that a conditional sentence order is available for this offence. Similarly, a conditional discharge is available. It is not the severity of the offence that determines whether a conditional discharge is available.

[29]        It seems clear that a conditional discharge would be in N.A.L.’s best interests, although it may not be particularly helpful to his rehabilitative prospects. For it to be in his best interests presupposes that he is a person of good character without previous conviction. The law has evolved somewhat since Fallofield in this regard. A prior conviction is not an obstacle to a conditional discharge. However, the component of “good character” should not be distilled. His support letters, albeit biased, do suggest he is otherwise a person of good character.

[30]        It may not be necessary to enter a conviction against N.A.L. in order to deter him from future offences, but I have significant doubts about the denunciation or rehabilitative components. I am also not satisfied that a conviction would have any more significant adverse repercussions for N.A.L. than a conviction entered against anyone else would have.

[31]        The issue over the prospects of rehabilitation are tied to the attitude he has expressed, the attitude of his supporters, and the public interest. By attitude of his supporters, I refer to the fact that while some of the references do acknowledge they are aware of the charges, none of them reflect any empathy or insight into the impact this offence has had on the victim. More troubling, they do not reveal any such observed empathy or insight on N.A.L.’s part. Two of the references cast blameworthiness on the victim. That the focus of N.A.L.’s concerns seem to be on D.L.’s desertion of N.A.L. at a time that he has been diagnosed with a critical illness fails to reflect the reality of D.L.’s circumstances: she was sexually assaulted by her husband who then threatened her life and that of her newborn child. While he has expressed remorse to the court, this is not at all reflected in the pre-sentence report or support letters. Rather, his bitterness over D.L. leaving him for another man and the impact this has had on N.A.L. during his considerable illness is his entire focus. It directly impacts his prospects for rehabilitation which are a critical component of my consideration of the appropriateness of a conditional discharge.

[32]        The public interest is addressed when ensuring that there is appropriate denunciation, deterrence and protection of the public. Deterrence must be both general and specific. The message must be sent that partners are not property. When a partner says no, the answer is absolutely no. No partner should be required or expected to remain with someone who is sexually abusive toward them. That N.A.L. and some of his supporters are so dismissive of this offence cries out for sterner denunciation.

[33]        I was referred to a number of cases including R. v. J.L.B., 2017 BCPC 24 (CanLII), 2017 B.C.P.C. 24, where the court considered the possible impact on immigration for a person who had been convicted of sexually assaulting a young employee. Having considered the immigration impacts and his efforts towards obtaining sexual offender counselling, the court determined that a conditional discharge was not contrary to the public interest. While N.A.L. has been seeing a psychiatrist and a counsellor, the focus of his counselling has been on coping with a debilitating and terminal disease rather than his offending. He has none of the compelling mitigation found in J.L.B.

[34]        In R. v. T.J.H., 2012 BCPC 115 (CanLII), 2012 B.C.P.C. 0115, the court dealt primarily with whether it was appropriate to order a Sex Offender Information Registry Act (SOIRA) order where a conditional discharge had been granted. Where a conditional discharge is not granted, a SOIRA order is required.

[35]        The decision of R. v. Carrillo, 2015 BCCA 192 (CanLII), 2015 B.C.C.A. 192, addressed exceptional and unusual circumstances. The case was not a sexual assault one but one for possession of cocaine for the purposes of trafficking. The defence had sought a community based sentence and the crown had argued that there were no exceptional or unusually compelling circumstances to warrant one. The court considered Mr. Carrillo’s status as a refugee as well as his medical conditions and other mitigating factors when suspending passing of the sentence and imposing a period of probation. At paragraph 37 of Carrillo, the court cited from R. v. D.E.S.M., 1992 CanLII 6009 (BC CA), [1993] B.C.J. No. 702 (B.C.C.A.) from paragraph 20 of that decision:

[36]        I accept that it is appropriate in these circumstances to impose a sentence in the community. N.A.L. is very ill and does not pose a danger to society that requires his separation from it. However, the lack of empathy for D.L. and the focus on his own suffering rather than the impact of his offence upon D.L. preclude consideration of a conditional discharge. I similarly see no special circumstances that would make the SOIRA order any more onerous or any less appropriate than for anyone else charged with this offence.

[37]        I am imposing a six month conditional sentence order on the following terms:

[38]        This will be followed by a period of probation for 12 months on the following terms:

[39]        Under s. 490.012, you are required to comply with the Sex Offender Information Registration Act for 10 years.

[40]        This is a primary designated offence. Pursuant to section 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank.

[41]        Under s. 487.051, you must attend at the RCM Police Station in Quesnel, British Columbia on March 8, 2018 at 9:00 AM and submit to the taking of the samples. This order is valid until executed.

[42]        Under s. 110, you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substance for five years.