IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The Offender, M.P. has pled guilty to the following charges:

[2]         Crown and defence counsel have put forward a joint submission that the appropriate sentence of the s. 151 offence is eight years, and that the remaining offences are worthy of approximately three years of incarceration. Where counsel differ is whether the other sentences should be concurrent or consecutive to the sexual interference charge.

[3]         Defence counsel argues that the totality of the offences weighs in favour of concurrent sentences and that the offender should be given credit because the sexual interference sentence is at the high end of the range for this offence.

[4]         The circumstances of the first six counts are based on the agreed statement of facts (Exhibit 7) and submissions of counsel. I will be referring to some people by their first name since they share a last name.

[5]         M.P. (Mr. P.) has been in an on and off intimate partner relationship with N.R. (N.) for many years. Mr. P. and N. are the biological parents of two children born in 2013 and 2010. Prior to meeting Mr. P., N. had a daughter G.R., born [omitted for publication]. Mr. P. first came into contact with G.R. when she was approximately 1 1/2 years old. Mr. P. took on the role of a stepfather to G.R. during her upbringing.

[6]         N. had a fourth child from another relationship born in [omitted for publication] Ontario. All of N.’s children were apprehended by the Ontario Children’s Aid Society due to the inability of the parents to care for them. This resulted in the children being in foster care for four years before finally being placed under legal guardianship of N.’s father S.R. (S.). In September 2021 the four children resided at S.’s residence in [omitted for publication], Ontario.

[7]         S.’s son A. also lived in the residence. A. owned a car, a Pontiac Grand Prix.

[8]         Mr. P. was permitted supervised visits with his children at S.’s residence on Tuesdays and Fridays. In September 2021 G.R. was 13 years old, Mr. P. was 38 years old.

[9]         On September 1, 2021 Mr. P. visited his children at S.’s residence. At midnight S. discovered that G.R. was no longer in the residence. The next day S. discovered the keys to A.’s car were no longer in the residence and the car was gone. A. reported to the Waterloo Regional Police that his car had been stolen.

[10]      Efforts were made by S. to contact Mr. P. and G.R. by cell phone to determine their whereabouts. He was unsuccessful. S. was advised by an ex-girlfriend of Mr. P. that she had communicated with G.R. by cell phone. G.R. had indicated she was going to Vancouver with Mr. P.

[11]      An Amber alert was not initiated by police as it was believed at that time that G.R. had left willingly with Mr. P.

[12]      On September 9 N. filed a missing person report with the Waterloo Regional Police in relation to G.R. S., the legal guardian, advised police that he had not given permission to Mr. P. to take G.R. from the residence.

[13]      Through cell phone tower transmissions police were able to determine that Mr. P. and G.R. and the stolen vehicle were likely in Saskatchewan. On September 9 RCMP officers in Maple Creek, Saskatchewan located the stolen vehicle.

[14]      Officers attempted to conduct a traffic stop in Maple Creek at a local gas station. Two police vehicles blocked the suspect vehicle, a Pontiac Grand Prix with Ontario license plates that was parked. Police officers approached the vehicle and observed a male and a female in the car and they appeared to be sleeping in the back. There was also a dog in the car.

[15]      Police officers knocked on a window and asked the male to open the door. The male was noncompliant and began rummaging in the vehicle. Police told the male he was under arrest and to open the door. One police officer broke a window of the car to gain access to the suspect male. The male got into the front seat of the car, a second window was broken by the police to get at the suspect male. The male started the car and struck one of the police cars to escape. The suspect vehicle then took off at a high rate of speed.

[16]      Later that same day, the vehicle was located in Cranbrook, British Columbia. The suspect vehicle was found at a local gas station. An RCMP marked police vehicle followed the suspect vehicle until a second RCMP vehicle could join the pursuit. RCMP officers in Cranbrook attempted a traffic stop of the suspect vehicle; however the vehicle did not stop which resulted in a police pursuit.

[17]      The police attempted to spin out the suspect vehicle by hitting it. This did not work, and the suspect vehicle carried on at a high rate of speed within the city limits of Cranbrook. The vehicle travelled at speeds between 70 to 110 km/h in a residential area where the speed limit is a maximum of 50 km/h.

[18]      The vehicle was eventually stopped when the suspect vehicle entered in to a street that looped around and the police were able to block off both ends of the street. However, the driver of the suspect vehicle still tried to evade the pursuit and the police had to collide one of the police vehicles with the suspect vehicle and push it into a driveway in order to finally bring it to a stop.

[19]      The male suspect, who was the driver, did not comply with demands to get out of the vehicle and instead was seen rummaging for something in the vehicle. He had to be pulled from the car by a police dog. The suspect male was M.P., the offender in this case. He was arrested and handcuffed at the scene. It was discovered that the bag Mr. P. was rummaging in contained box cutters.

[20]      In the car was a large dog and a small dog and the female passenger G.R. G.R. was initially arrested at the scene for being in possession of a stolen vehicle. Fortunately, no one was injured from this incident other than Mr. P. from being pulled from the vehicle by the police dog.

[21]      G.R. was taken to hospital for examination. At the hospital it was discovered that G.R. was approximately 33 weeks pregnant. G.R. was unaware of her pregnancy.

[22]      G.R. returned home to Ontario on September 13. She gave birth to a baby girl on October 19, 2021 by way of caesarean section.

[23]      G.R. provided a statement to the police concerning her involvement with Mr. P. She advised that she first had sexual intercourse with Mr. P. in January 2021 at her grandfather’s residence. She believed she had sexual intercourse with Mr. P. between 5 to 10 times. She did not know that she was pregnant until it was discovered in the hospital in Cranbrook, British Columbia. There is no other person that could be the father of the child than Mr. P.

[24]      With respect to the final three charges, the first occurred in August 2021 in Ontario when Mr. P. was found with what appeared to be a firearm while he was on a release order not to possess a firearm or an imitation firearm. The firearm in question was a BB gun. Upon arrest Mr. P. was searched and found to have one gram of fentanyl on him.

[25]      Another term of M. P.’s release order was that he was to reside with his father in Kitchener, Ontario. He obviously breached that term when he fled Ontario with G.R.

[26]      M.P. is now 39 years of age. He has a criminal record that begins in 2006 with convictions for serious violent offences including: assault with intent to resist arrest, assault peace officer and forcible entry. He also has numerous convictions for failing to comply with court orders. The only significant break in the offender’s criminal record is because he was serving a penitentiary sentence in 2015.

[27]      Mr. P. identifies as Métis and a Gladue report was prepared. A Pre-Sentence Report and a Psychological Assessment were also completed.

[28]      Mr. P. was born in Timmins, Ontario but in his early years he was raised in British Columbia by his mother. His mother and father separated when he was 2 years old. He did not meet his father again until he was 9 years old. In the interim his mother got involved with a couple of men, one died in a car crash and another man was physically and sexually abusive to her and to Mr. P.

[29]      As a result of this abusive relationship the BC Ministry of Children and Family Development apprehended Mr. P. and his siblings. They resided in a foster home for about a year before returning to their mother’s care.

[30]      Sadly, at the age of eight Mr. P.’s sister drowned in a swimming pool, and Mr. P. was the one to discover her body. This was very traumatic for him. After this tragic event his mother and father reunited for a few years until at his age of 13 they separated again.

[31]      His mother remained in British Columbia and his father moved to Ontario. Mr. P. spent time going back and forth between his parents.

[32]      His unstable family life affected his education. In addition, Mr. P. started to use alcohol and drugs at an early age.

[33]      Mr. P. has had one long-term relationship with N., the mother of G.R. This relationship was very unstable due to his addictions and being in and out of jail. Mr. P. and N. have two children as a result of their relationship. N. has other children from other relationships.

[34]      This relationship with N. has been violent at times, and at the time of these offences the offender was separated from N. This separation was given as a reason by the offender for why the sexual interference occurred.

[35]      In psychological testing Mr. P. meets the diagnostic criteria for posttraumatic stress disorder, stimulant use disorder, alcohol use disorder, and opioid use disorder. As for his risk to reoffend, Mr. P. is a moderate to high risk for future general and violent reoffending. However Mr. P. is in the low risk category to commit a future sexual offence.

[36]      The Gladue report states that Mr. P.’s two grandfathers attended a residential school, although the specifics of where and when and for how long are unclear. Mr. P.’s mother has been able to trace a maternal ancestral line to the 1880’s within the Métis community. His mother is working on obtaining her Métis citizenship.

[37]      Mr. P. has no cultural identity or connection with the Métis community. It is not surprising that an offender such as Mr. P. is where he is given his upbringing.

[38]      Fortunately the federal penitentiary institutes in this province provide several programs that would be available to Mr. P. should he wish to make these connections. Of note, it appears that Mr. P. had an opportunity to connect with Indigenous Elders when he was last incarcerated and serving a federal sentence.

[39]      One positive of Mr. P.’s incarceration in British Columbia is that he has grown closer to his mother and her partner, Mr. K. They are both willing to have Mr. P. live with them when he is released and support him with his addictions recovery.

[40]      Mr. P. gave a statement to this court at the conclusion of the sentencing hearing in which he apologized to the victim and stated that he recognizes the harm he caused her and he recognizes the emotional damage he has caused and the damage that will result to her future relationships. The offender has said the right things and I hope he was sincere. This will bode well for him and for society if he is sincere and makes genuine progress to change his ways.

[41]      The Crown seeks a total sentence of approximately 11 years. Eight years for the sexual interference charge, and approximately 3 years consecutive for all the other charges, minus his time already served in custody.

[42]      The Crown seeks 8 months total for the Saskatchewan charges, and 20 months in total for the British Columbia charges.

[43]      The Crown submits that the driving offences are very serious and unrelated to the sexual interference charge and therefore should be consecutive to it.

[44]      With regards to the sexual interference events the Crown relies on the following cases:

[45]      Although Mr. P. has pled guilty to these charges, the Crown points out that there are significant aggravating factors:

[46]      Also, this crime has had a significant impact on the victim as evidenced by her victim impact statement.

[47]      With respect to the driving offences these incidents occurred in two different provinces, at obviously different times and cannot be considered as one single transaction.

[48]      There are various ancillary orders that the Crown is seeking that defence counsel agrees with because they are either mandatory or appropriate. They will be dealt with later.

[49]      Defence counsel agrees that 8 years for the sexual interference charge is appropriate but submits that all the other charges should be concurrent to this charge. Thus the total sentence should be 8 years, minus time already served.

[50]      Defence counsel relies on the following cases:

[51]      Counsel submits that these cases show that the usual range for the offence of sexual interference by a stepparent is usually 5-8 years; therefore the accused should be given some benefit as he is agreeing with the higher end of the range.

[52]      Defence counsel submits that there are many mitigating factors to consider:

[53]      The relevant sentencing provisions are as follows:

[54]      First, with respect to the cases about the range of sentence for sexual interference.

[55]      The cases do suggest a broad range of 5-8 years, but it is clearly a tenuous range and the facts of each case will move an appropriate sentence in or out of this range. An example of this thought is found at paragraph 16 of D.N. where the court refers to a case from 1995 from the Court of Appeal called R. v. T.A.D., 68 B.C.A.C. 236:

[56]      T.A.D. is a decision that is well before the recent Supreme Court of Canada decision of Friesen wherein (at para. 114) the Court directs sentencing courts to consider substantial sentences for sexual offences committed against children. Everyone agrees that the Supreme Court of Canada in Friesen is directing sentencing courts to emphasize denunciation and deterrence when crimes have been committed against children and that, if anything, past ranges for these crimes should be moved upward.

[57]      The only mitigating factor in this case is the guilty plea he entered on the sexual interference charge.

[58]      Although pleading guilty is a mitigating factor it is difficult to give Mr. P. much credit for this. The case against Mr. P. is overwhelming. With respect to the sexual interference charge there was no hope or prospect of any defence that he was giving up when he pled guilty. However, his guilty plea has saved the victim from going through the ordeal of testifying.

[59]      With respect to the sexual interference charge the aggravating factors are significant and many. In fact, all of the aggravating factors in s. 718.2(a) are covered. Not only was Mr. P. in a position of trust to the victim, and the victim is a child, and a member of his family, he had actual intercourse with the victim many times over an extended period of time.

[60]      However, as bad as those factors are, the impact this crime has had on the victim is the most significant factor. The impact on the victim has been severe. Not only was the victim repeatedly sexually violated she became pregnant as a result of this crime. Because of this pregnancy this child had to decide whether to give birth to her child either vaginally or by caesarean section. A 13-year-old’s body is not ready to give birth to a child. The risks to the victim’s health, and even her life are significantly higher at her young age.

[61]      The victim decided on a caesarean section which has its own risks and impacts on the victim. Having a caesarean section is akin to an assault causing bodily harm, the victim now has a significant scar from this operation and would have endured a lengthy recovery.

[62]      Unfortunately the harm does not end there. There is the psychological and emotional trauma she has suffered and will continue to suffer. A 13-year-old should not have to deal with the Sophie’s choice of choosing between the raising of a child or giving up the child for adoption.

[63]      The victim has decided to keep her daughter but this will significantly impact her future ability to obtain an education and obtain meaningful employment. Her social life will be drastically affected. Had she given up her daughter for adoption she would, no doubt, have had to deal with a lifetime of wonder and regret about her decision.

[64]      The newborn child is also a victim. What will be the impact on this child upon learning of her origins one day? How will she relate to her half-siblings, her father who is the offender?

[65]      A sentence of 8 years for this offence alone is entirely appropriate, including his guilty plea. I would not find it to be at the high end of the range. Denunciation and deterrence are to be given maximum weight in this case and cannot be reduced by his prospects for rehabilitation or the remorse he now feels.

[66]      I will not embark on an analysis of the driving offences or other offences (possession of a stolen car and breach of court orders) as there is a joint submission for these offences and they are within an acceptable range.

[67]      I do not accept that Mr. P.’s injuries suffered by his interaction with the police dog is a mitigating factor. Mr. P. knew that he was committing a criminal offence or offences and he was doing everything in his power to evade arrest. He was found rummaging in a bag that contained box cutters. It is not a stretch to reasonably conclude that he was searching for a weapon to ward off the police. The police use of the dog was entirely reasonable in the circumstances. That the offender suffered a completely foreseeable injury is entirely his own fault.

[68]      With respect to the submission that Mr. P. will have a harder time in prison because of the sexual interference offence, this is a matter for the correctional authorities to deal with, I cannot give any credit for how other inmates may regard him. His good behaviour while in custody will assist him in his eventual application for parole, I will give him no credit for this here.

[69]      The only issue is the total length of the sentences. The issue of totality is addressed by s. 718.3(4) of the Criminal Code which states:

[70]      The facts of this case cover all three of the circumstances set out in s. 718.3(4).

[71]      Having determined what the appropriate sentences are for the individual offences this court must determine if the total of the consecutive sentences would be unduly harsh (See R. v. Li at para. 48). In determining this question this court must consider if the offences involve different victims or involve different societal interests (See R. v. T.A.P. at para. 184).

[72]      I do not accept that the two driving incidents in Saskatchewan and British Columbia are one transaction. There is a significant break in time and distance between these events. The excuse that he was merely reacting because of some prior abuse he suffered by older males I do not accept. Again, Mr. P. knew that he was committing criminal offences and was on the run. He could not have been surprised that the police were looking for him, or that they found him.

[73]      Mr. P.’s actions in committing these driving offences put his passenger’s life at significant risk of harm, as well as the police officers who encountered the accused, as well as the general public. Even if Mr. P.’s actions in the Saskatchewan incident where a visceral reaction this cannot justify what happened in Cranbrook, British Columbia.

[74]      Mr. P. well knew that the police were looking for him and what the police would do if they found him. His prior criminal convictions for assaulting a peace officer and committing an assault with intent to resist arrest are aggravating factors. His actions in British Columbia were deliberate and calculated. In both incidents Mr. P. was seen rummaging for something in the car, he was not giving himself up without a fight and was preparing to arm himself. Thankfully, he was unsuccessful in this.

[75]      The sexual interference offence involves one victim, the driving offences involve the same victim, but also involves the police and the general public as potential victims. The general public and the police who, in this case, risked serious bodily harm or worse, deserve the protection of the law that this court can provide.

[76]      The other factors I must consider are that Mr. P. was on a release condition and on probation at the time of these offences and he was attempting to escape detection and responsibility by fleeing from the police on two separate occasions.

[77]      I find that it is not appropriate or in the interests of justice that the offender be given concurrent time for the other offences including the driving offences. The driving offences and the sexual interference offence are not related and are distinct events. It is aggravating that the driving offences were committed knowing that he was removing the victim from her guardian and other family members.

[78]      Mr. P.’s stated reason for driving out west in a stolen vehicle to start a new life rings hollow. Mr. P. was not starting a new life, he was fleeing his current life and hoping to escape his responsibilities.

[79]      I have considered the Gladue factors as presented in the Gladue report. His upbringing is most unfortunate but these factors cannot be given much weight in this case given the many aggravating factors already mentioned.

[80]      The offender is not a naïve 19-year-old. He is 39 years old with a lengthy history of criminal and antisocial behaviour. He is at a moderate to high risk of re-offending, including violent offences. He needs to be held fully accountable for his actions and he needs to be removed from society. A lengthy sentence is also required to rehabilitate this offender. He has already served a penitentiary sentence among other jail sentences and that has done little to rehabilitate him.

[81]      I find that the total of the sentences is not unduly harsh but in fact necessary to give effect to specific and general deterrence and to assist in the rehabilitation of Mr. P.

[82]      I hereby waive any Victim Fine Surcharges.