IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         THE COURT:  After a multi-day trial, I found A.H. had sexually assaulted J.S. on September 12, 2020, in Prince Rupert, British Columbia, contrary to s. 271 of the Criminal Code. I have set out the circumstances of the sexual violence offence and my factual findings in R. v. A.H., 2023 BCPC 131. Although it appeared initially that the B.C. Prosecution Service was proceeding by way of summary conviction, on April 20, 2022, the B.C. Prosecution Service clarified before Judge Skilnick that it was proceeding by indictment. On April 17, 2023, A.H. elected to be tried by a Provincial Court judge without a jury. 

[2]         As pointed out by Justice Marchand, as he then was, in R. v. C.C.C., 2021 BCSC 599, a case involving the sexual victimization of a preteen girl by an Indigenous man:

[3]         I believe that the same holds true in the case of the sexual victimization of an Indigenous female teenager by an Indigenous man, especially when the Indigenous man was himself repeatedly sexually victimized as a boy.

[4]         Taking into account that A.H. is an Indigenous man and the victim of his sexual violence is an Indigenous woman who was 18 at the time of the offence, the B.C. Prosecution Service seeks a sentence of 12 to 18 months in jail, followed by a two-year probation order. The B.C. Prosecution Service also seeks the following ancillary orders:

[5]         Taking into account the Supreme Court of Canada's teachings in R. v. Gladue, [1999 CanLII 679], and R. v. Ipeelee, 2012 SCC 13, and arguing that "exceptional circumstances" exist for A.H., Ms. Fadden submits that the principles of sentencing can be met in A.H.'s case by the imposition of a conditional sentence order ("CSO"). The defence seeks a CSO of two years less a day, followed by one year of probation. The defence concedes that DNA and SOIRA orders are appropriate in the circumstances. The defence also concedes that a CSO should not be imposed unless the court is satisfied that the service of the CSO in the community would not endanger the community's safety and would be consistent with the fundamental purpose and sentencing principles as set out in ss. 718 to 718.2 of the Criminal Code.

[6]         Counsel has provided the Court with several case authorities, including the following prosecution cases:

[7]         The defence has provided the following cases:

[8]         I have read and considered all of the cases provided by counsel, as well as a number of other cases which I will reference in my decision.

[9]         In light of the sentencing positions presented to the court, the issue for me to decide is this: should the now 47-year-old A.H. serve his sentence behind bars in a correctional centre or in the community by way of a conditional sentence order (CSO)?

[10]      For the reasons set out below, I have concluded that this is one of the rare cases where exceptional circumstances exist. In the unique circumstances of the present case, and applying the principles set out in the relevant sections of the Criminal Code, Gladue, and Ipeelee, the appropriate sentence for A.H. is a CSO of two years less a day, followed by three years of probation and ancillary orders.

[11]      On September 11, 2020, the defendant drove himself to work and later, after allowing his daughter to take his vehicle, he got a ride home from work shortly after 6:30 p.m.

[12]      On the evening of September 11, 2020, the defendant spent time with his then-partner and her family, before going with his partner to a pub in Prince Rupert. He consumed one or more beers at the pub over a short period of time. Sometime after 9:00 p.m., the defendant left the pub with his partner. They went to her home, where the defendant continued drinking alcohol, consuming not less than four vodka ice teas.

[13]      While A.H. was enjoying his time with his partner, the victim and A.H.'s son, R.H., were at the house of A.H.'s mother, D.G., in Prince Rupert. A.H. and his three children, including R.H., lived with D.G.

[14]      The victim, who [omitted for publication] employed, had just relocated from Haida Gwaii to Prince Rupert. She surprised R.H. by going to his house around 7:00 p.m. After a trip to the liquor store, R.H. and the victim had alcoholic drinks with their mutual friends, A. and J., in R.H.'s bedroom.

[15]      R.H. and the victim were having a good time when the intoxicated defendant arrived home late in the evening. R.H. and the defendant got into a discussion about abortion and the debate turned heated. A. and J. left the house, while the victim and R.H. went for a walk to cool R.H. down.

[16]      After R.H. calmed down, they went back to R.H.'s bedroom, chilled, watched a movie, and fell asleep in R.H.'s bed.

[17]      Sometime in the morning of September 12, 2020, before 7:45 a.m., the defendant, A.H., entered R.H.'s bedroom while R.H. and the victim slept. The victim was sleeping on her side and turned away from R.H. The defendant got into the bed and sexually assaulted the victim. Specifically, the victim, wearing pyjama shorts and a sweater, was awakened by A.H. on top of her and kissing her. At the same time, A.H. held one hand on the right side of her face, pushing it into the bed, while his other hand went up her pyjama bottoms and under the sweater she was wearing.

[18]      As the sexual violence continued, A.H. touched the victim's breasts, buttocks, and vagina before inserting his fingers inside her vagina, resulting in the victim experiencing pain and bleeding. The victim was frozen in place and unable to react.

[19]      During the sexual assault, A.H. told the victim that she was a good girl and that he wished R.H. never broke up with her, so that she could stay around.

[20]      At some point during the sexual violence, R.H. woke up, saw what his father was doing to the victim, and kicked his father out of the bedroom. A.H. said that he was sorry and rushed out of the bedroom.

[21]      At no point did the victim consent to being touched by A.H., never mind agreeing to be touched in the manner that A.H. sexually violated her.

[22]      The victim and R.H. did not discuss the sexual assault again until approximately six weeks later. They did not discuss the sexual violence again until February 15, 2021, after D.G. kicked R.H. and the victim out of her house for failing to do dishes or otherwise assisting with household chores.

[23]      R.H. and the victim broke up in 2021, approximately three months after D.G. kicked them out of her house.

[24]      Victim impact statements assist the court in assessing the gravity of the harm arising from the offences and give victims of crime a voice in the criminal justice system. They allow victims to explain to the court and the offender, in their own words, how the crime has affected them. If a victim wants to read their victim impact statement aloud at the sentencing hearing, the court must allow it.

[25]      Section 722 of the Criminal Code outlines the rules and expectations for victim impact statements. The first three subsections are particularly applicable:

[26]      In the present case, the B.C. Prosecution Service did not provide the Court with a victim impact statement, despite the victim telling the author of the presentence report that she had prepared a victim impact statement. Nevertheless, I did have the advantage of listening to the victim's testimony at trial. Furthermore, on page 4 of the presentence report, the author of the presentence report sets out what the victim told him about how the sexual violence has affected her:

[27]      J.S. reports that A.H. has not tried to contact her while he has been on his undertaking. However, she does want a no-contact and a no-go condition on any subsequent order.

[28]      In coming to know A.H.'s background and current circumstances, the court has had the benefit of extensive submissions from Ms. Fadden and three reports:

[29]      A.H.'s paternal family is Tsimshian and his maternal family is Nisga'a. The Gladue report indicates that his paternal grandparents were survivors of the residential school system who became alcoholics in response to their trauma, while his mother, D.G., attended Indian day school.

[30]      Raised in Prince Rupert, when A.H. was a child, his father worked the day shift at the local shipyard, while D.G. worked the night shift at the cannery. His parents separated when A.H. was eight years old. Having grown tired of her husband's infidelities and the physical and mental abuse he subjected her to, D.G. abruptly left the family. D.G.'s meaningful parental involvement or contact with her children ended shortly after that.

[31]      A.H.'s father, with the support of A.H.'s paternal grandparents and various extended family members, took over the responsibility of raising A.H. and his siblings.

[32]      As a young child and throughout his childhood, A.H. experienced ongoing physical and sexual abuse from his father and other relatives. He continues to have flashbacks. Some of his earliest memories are of his grandfather beating him and his grandmother. His sisters were also sexually abused by their uncles whenever the children visited or stayed with the paternal grandparents. Sexual abuse of the children, including A.H., also often happened when his father hosted parties. There exists an intergenerational family history of incest – including A.H.'s father and uncle sexually violating their sisters.

[33]      At age 20, and while living in Prince Rupert, A.H. became involved in a nine-year relationship with C.M., which produced three children: M.H. (now age 24), T.H. (now age 22), and R.H. (now age 20). While absent any forms of violence, A.H. and C.M. struggled to cope with the emotional manifestations of their respective childhood traumas, and they both engaged in the misuse of alcohol and drugs. The Ministry of Children and Family Development became involved with the family and placed their children with other family members. C.M. and A.H. separated as a result of their misuse of crack cocaine. Ultimately, to get his children back and get his life under control again, A.H. self-referred to the three-month residential addictions program at the [omitted for publication] Healing Centre in [omitted for publication], British Columbia. C.M. passed away as a result of drug overdose.

[34]      Upon completion of the residential treatment program, A.H. worked with the Ministry of Children and Family Development to regain custody of his children, including his son M.H., who was born with [omitted for publication] (a genetic condition [omitted for publication]) and requires a caregiver. Dr. Michael Ryeburn has opined that M.H.'s intellectual impairment means he is incapable of making important decisions, including medical decisions.

[35]      In October 2019, A.H. commenced a three-year intimate partner relationship with B.I. She is a [omitted for publication] councillor and is involved in the local justice and healthcare fields. They broke up due to the offence I have found A.H. guilty of.

[36]      Not long after his relationship with B.I. dissolved, A.H. entered into an intimate partner relationship with B.G. They reside together on the [omitted for publication] near Terrace, British Columbia, along with A.H.'s son M.H. and B.G.'s two children from a previous relationship: a nine-year-old boy and a six-year-old girl. B.G. knows of the matters before the court and fully supports A.H., noting that their relationship is stable and that A.H. is good with her children. A.H. relocated to Terrace from Prince Rupert because, after his arrest, he faced an onslaught of negative attention from the victim, her family, and other community members who made him feel like a pariah in Prince Rupert. A.H., through Ms. Fadden, has also claimed to have been the subject of vigilante justice, reporting being assaulted by the victim's current boyfriend.

[37]      Throughout his adult life, A.H. has enjoyed continuous employment in various fields, including First Nations fisheries and [omitted for publication] Services as a case support worker. Currently, he works full-time for the construction company [omitted for publication], where he is a lead hand overseeing the work of 10 to 20 other employees. The company ensures site cleanliness at the new hospital under construction in Terrace. His working life suffered from his alcohol use shortly after his arrest, and he acknowledges his alcohol use at that time was causing him to function poorly.

[38]      Concerning his financial circumstances, A.H. has approximately $1,800 in savings and no significant assets. His debts are roughly $7,500.

[39]      The Criminal Code of Canada includes a statement of sentencing purposes and principles to guide courts in determining punishment. The relevant sections in A.H.'s case include the following:

[40]      Unfortunately, many Indigenous persons going through this court have a tragic story of familial instability, witnessing and being a victim of domestic violence, experimenting with drugs and alcohol at a young age, being in and out of the child welfare system, unemployment, and being subjected to sexual abuse as a child. Often, a criminal record or interaction with the criminal justice system. Because of life circumstances, bail is also frequently problematic, resulting in guilty pleas to get out of jail sooner.

[41]      Just over 24 years ago, the Supreme Court of Canada in Gladue sought to break the cycle that we are encountering today. In Gladue, the Supreme Court of Canada confirmed that s. 718.2(e) did not represent mere tinkering with the sentencing framework, but rather was a fundamental shift in the sentencing paradigm. Furthermore, Gladue teaches that for s. 718.2(e), anyone with Indigenous ancestry should be considered an Aboriginal offender, whether or not they had been impacted by systemic discrimination. The Supreme Court of Canada also noted in para. 91 that:

[42]      We are taught in para. 27 of Gladue that the interpretation of s. 718.2(e) must begin with considering the words in context. Although the appeal in Gladue was ultimately concerned only with the meaning of the phrase "with particular attention to the circumstances of aboriginal offenders," the Supreme Court of Canada noted that the phrase takes on meaning from the other words of s. 718.2(e), from the purpose and principles of sentencing set out in ss. 718, 718.1 and 718.2, and from the overall scheme of Part XXIII of the Criminal Code.

[43]      At the beginning of para. 33 in Gladue, the Supreme Court of Canada concluded that:

[44]      In the latter half of para. 37, the Supreme Court of Canada instructed sentencing judges that they:

[45]      Paras. 58–64 of Gladue clarify the purpose of s. 718.2(e) was to reduce the over-incarceration of Indigenous offenders in Canadian jails.

[46]      Midway through para. 71, the Supreme Court of Canada noted that:

[47]      Continuing at the beginning of para. 72 and then at para. 73, the Supreme Court of Canada said:

[48]      Thirteen years after Gladue, in Ipeelee, Justice LeBel confirmed that the law requires that a sentencing judge engage in a different process for arriving at a fit sentence where the offender is Indigenous, but not necessarily impose a different sentence. In para. 71, Justice LeBel noted that in Gladue, the Supreme Court of Canada " . . . rejected Ms. Gladue's argument that 718.2(e) was an affirmative action provision or, as the Crown described it, an invitation to engage in 'reverse discrimination'."

[49]      Accordingly, s. 718.2(e) of the Criminal Code does not require an automatic reduction of a sentence or warranted period of incarceration simply because the offender is Indigenous. Instead, as set out in the middle of para. 60 of Ipeelee:

[50]      In the sentencing context for offenders who are Indigenous and seek the benefit of s. 718.2(e) and the Gladue analysis, a sentencing judge needs to look at several factors, including:

[51]      I have considered systemic and background factors that may have played a part in bringing A.H. before the court. For greater certainty, these are the same systemic and background factors that I consider when any Indigenous person appears before me. In doing so, I have looked deeper into the realities of A.H.'s life experience. I have conducted an individualized analysis of the available information about A.H. I have specifically looked at and for the following factors as they relate to A.H.:

[52]      In Parranto, Justices Brown and Martin for the majority clarified the basics of sentencing in Canada at paras. 9–12. The goal in every case is a fair, fit, and principled sentence. Furthermore, the Supreme Court of Canada at para. 36 emphasized that sentencing is an individualized process and that:

[53]      Our Court of Appeal's decision in R. v. L.S.N., 2020 BCCA 109, provides a good reminder that all sentences must be proportionate to the offence's gravity and the offender's degree of responsibility. L.S.N. also assists sentencing judges in understanding the application of exceptional circumstances to the assessment of an offender's moral culpability. In para. 72, Justice Fitch confirmed that:

[54]      The recent decision of Justice Edelmann in R. v. Maslehati, 2024 BCSC 121 – although not involving the complicating issue of an Indigenous man committing sexual violence against a teenage Indigenous woman – provides interesting commentary as to the use of CSOs in cases of sexual violence where there was no sexual intercourse. I note that Mr. Rines for the B.C. Prosecution Service essentially made the duplicate submissions as the prosecutor in Maslehati; that the level of physical interference was such that a custodial sentence in a correctional centre is required. In Maslehati, beginning midway through para. 29, it was noted that:

[55]      In R. v. K.B., 2023 ONCJ 286, a decision from the Ontario Court of Justice, K.B., a 27-year-old man, sexually assaulted two female victims while they slept. K.B. sexually fondled both victims on their breasts and digitally penetrated one of the victims. K.B. had no criminal record. The court found K.B.'s conduct was a severe violation of the sexual integrity of the two sleeping victims, affecting their dignity and emotional well-being, as well as their sense of safety and security. Nonetheless, the court concluded that a 12-month CSO would satisfy the principles of denunciation and deterrence.

[56]      Finally, in R. v. T.H., 2024 BCCA 123, our Court of Appeal considered the Crown appeal of a CSO in a case involving sexual violence by vaginal penetration. In dismissing the appeal, the court held that the cumulative effect of the terms and length of the sentence was sufficiently harsh to reflect the gravity of the offence and the moral culpability of the respondent.

[57]      Restorative justice processes take various forms. In the sentencing context, restorative justice is often understood to be a non-adversarial and non-retributive approach to justice that focuses on addressing the harm caused by crime, while holding the offender responsible for their actions. In theory, restorative justice provides an opportunity for the parties directly impacted by the crime – victims, offenders, and communities – to identify and address their needs in the aftermath of a crime.

[58]      Restorative justice is based on the understanding that crime is a violation of people and relationships. The principles of restorative justice are based on respect, compassion, and inclusivity. Restorative justice encourages meaningful engagement and accountability, and provides an opportunity for healing, reparation, and reintegration.

[59]      With respect to Indigenous communities, restorative justice means ensuring that the offender's sentencing reflects an understanding of the specific First Nations' cultures, traditions, and hopes for the future. It also means addressing local issues by engaging with the local community.

[60]      While I am not sitting in an Indigenous Court for purposes of A.H.'s sentencing, I have nevertheless kept in mind and applied, albeit in a modified form, the principles of restorative justice in rendering my judgment. Specifically, I have addressed the harm caused by A.H.'s offence and I hold him responsible for his crime.

[61]      I have kept in mind that in sentencing A.H., I am required to consider the lasting consequences of colonialism, residential schools, and the resulting disproportionate incidences of addictions, crimes involving sexual violence, poverty, and children being separated from their parents and home communities in First Nation communities. I cannot ignore the reality of how the European Eurocentric worldview favours it over non-Western civilizations, has affected British Columbia's First Nation communities and left generations of First Nations peoples struggling to find their place in the world.

[62]      I must also consider the same lasting consequences of colonialism, residential schools, and the resulting disproportionate incidences of addictions, crimes involving sexual violence, poverty, and children being separated from their parents and home communities in First Nation communities as they relate to the young female victim in this case. It is unfortunate that the B.C. Prosecution Service did not submit a detailed victim impact statement from the victim, as doing so would have enlightened the court to a greater degree on the lasting harm of A.H.'s crime, both in relation to his victim specifically and Indigenous women generally.

[63]      At pages 39–40 of their scholarly article Sexual Abuse in Canadian Aboriginal Communities: A Broad Review of Conflicting Evidence, the authors noted the following about Child Sexual Abuse (what they call "CSA") among Canada's Indigenous peoples:

[64]      Nine years ago, the Truth and Reconciliation Commission of Canada concluded its momentous work. In order to redress the legacy of residential schools and advance the process of Canadian reconciliation, the Truth and Reconciliation Commission made 94 Calls to Action in Truth and Reconciliation Commission of Canada: Calls to Actions, Truth and Reconciliation Commission, 2015, Winnipeg. Call to Action Number 36 specifically recognized and called out the prevalence of offenders having been sexually abused themselves:

[65]      I would be remiss not to reference that "there has to be awareness of the past, acknowledgement of the harm that has been inflicted, atonement for the causes, and action to change behaviour'' as set out at pages 6 and 7 in Honouring the Truth, Reconciling for the Future - Summary of the Final Report of the Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada, 2015, Winnipeg.

[66]      In R. v. Testawitch, 2022 BCPC 39, in addressing the directive of the Supreme Court of Canada to reduce the over‑incarceration of Indigenous offenders in Canadian jails and thus fulfil the purposes of s. 718.2(e) of the Criminal Code, I noted the following:

[67]      As stated by Justice Punnett at paras. 89, 90 in R. v. D.R.P., [[2021] B.C.J. No. 1954]:

[68]      Dr. Gatner, Clinical Psychologist, carried out the Risk for Sexual Violence Protocol-2nd Version and identified A.H.'s perpetrator risk factors "were predominantly coded as occurring in the past", namely serious past problems with substance use, high‑conflict relationships, unhealthy non-intimate relationships (gang associated friends in his youth), mental disorder (depression and possible psychosis in 2021), stress, and coping.

[69]      Dr. Gatner's assessment is complemented by a Structured Assessment of Protective Factors, these being the elements of A.H.'s life that mitigate against further offending. Dr. Gatner noted A.H.'s full-time employment, good financial management, respect for authority, treatment motivation, and the support of his live‑in partner as bring protective qualities against future violence.

[70]      Based on his risk and protective factors, Dr. Gatner concludes that A.H. is of a low-to-moderate risk for sexual violence, and low risk for serious or life‑threatening violence. Dr. Gatner further noted that the largest risk factors, namely prior sexual offences and sexual deviance, are absent in his clinical assessment:

[71]      Defence counsel submitted, and Crown Counsel did not disagree, that A.H.'s low-to-moderate risk level means that he may not be accepted into a sex offender program because he is not of a moderate-to-high risk. What this means in real world terms is that A.H. is a lower priority candidate, so he may have more therapeutic options in a community setting as opposed to a penal setting.

[72]      I accept that A.H. is a low risk of committing another sexual violence offence, especially if he is not consuming alcohol. The laying of charges and the criminal process itself have had a significant impact on him. He has been on bail for some time, and the trial process has been particularly difficult for him. He is now a convicted sex offender, the social impact of which is substantial. He has been the recipient of vigilante retribution.

[73]      Because both the victim and A.H. are Indigenous, I must consider and apply the issues identified by the Supreme Court of Canada in Gladue and lpeelee. I also must consider that while the victim in the present case is not considered a child by the Government of Canada, she was a child as far as the Government of British Columbia is concerned, as the legal age in British Columbia is 19. As noted in R. v. Friesen, 2020 SCC 9:

[74]      The teachings of the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478, reversed on other grounds at R. v. Sharma, 2022 SCC 39, are beneficial and applicable to the present case. Justice Feldman, for the Majority in Sharma, stated:

[75]      I wholeheartedly agree with the Supreme Court of Canada in para. 118 of Friesen that our understanding of the profound physical and psychological harm that all victims of sexual violence experience has deepened. I also unreservedly agree with the prosecutor that A.H.'s offence was a severe violation of the victim's bodily autonomy, sexual integrity, and dignity that caused her physical and psychological harm.

[76]      The aggravating circumstances in this matter include the following:

[77]      The mitigating circumstances include the following:

[78]      A.H. has been the subject of vigilante justice, having been assaulted by somebody known to the victim. While vigilante justice is a collateral consequence and not mitigating in relation to the offence itself, as set out in Suter at paras. 45–59, vigilante justice is a factor for the sentencing judge to take into account when considering the circumstances of the offender, albeit to a limited extent.

[79]      The defence acknowledges that there is no benefit of an early guilty plea but submits, correctly in my opinion, that the failure to plead guilty and conviction after trial are not aggravating factors.

[80]      I believe A.H.'s moral blameworthiness is on the higher end of the spectrum. His voluntary consumption of alcohol and the accompanying mental health issues directly impacted A.H.'s decision-making process. They contributed to his drunken decision to sexually violate the victim in his son's bedroom with his son present. A.H. was aware of his alcohol addiction at the time of the offence. Nonetheless, he simply refused to deal with it seriously until after he was charged with the sexual assault.

[81]      At the conclusion of submissions by legal counsel, A.H. addressed the court. I am of the belief that his actions since his crime show true remorse; that is, he is truly sorry for his crimes and that he has now faced the demon of his alcohol addiction disorder head-on, with an earnest desire to live a lawful and productive life moving forward, as he stated in court:

[82]      As noted by the Supreme Court of Canada in Proulx, a CSO is a term of imprisonment that, although served in the community, is punitive and denunciatory. In particular, given A.H.'s circumstances, including the needs of his eldest son and the changes he has made to his life since his arrest – including sobriety – I do not find incarceration in a correctional centre necessary to achieve the sentencing objectives. Considering the overall circumstances, exceptional circumstances exist. I, therefore, find that a CSO with appropriate punitive conditions, combined with three years of probation, can meet the principles of denunciation and deterrence in the case before me.

[83]      One moment.

[84]      3000-1: You must comply with a conditional sentence order for a term of two years less one day. The conditions are:

[85]      3001: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your conditional sentence supervisor before any change of name or address and promptly inform the court or supervisor of any change in employment or occupation. You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province.

[86]      3101: You must report in person to a conditional sentence supervisor at the Prince Rupert Community Corrections Office by 3:00 p.m. tomorrow, April 12, 2024. After that, you must report as directed by your conditional sentence supervisor.

[87]      3201: When first reporting to a conditional sentence supervisor, you must provide them with the address or location where you live and regularly sleep and your telephone number, if you have one. You must not change your address or location where you live and regularly sleep, or your telephone number, without prior written permission from your conditional sentence supervisor.

[88]      3002: You must have no contact or communication, directly or indirectly, with J.S.

[89]      3003: You must not distribute, publish, post, or make publicly available in any way information, including comments and images, which refer to or depict J.S.

[90]      3005-1: You must not go to or be within 100 metres of any place where J.S. lives, works, attends school, worships, or happens to be. You must leave her presence immediately without words or gestures if you see her.

[91]      3209-1: Beginning at 7:00 p.m. on April 12, 2024, for the first 18 months of the conditional sentence order, you must obey house arrest by being inside your residence where you live and regularly sleep 24 hours a day, seven days a week. For the remainder of your conditional sentence order, you must obey house arrest by being inside the residence where you live and regularly sleep between 3:00 p.m. and noon. The exceptions are as follows:

[92]      3209-2: You must present yourself immediately at the door of your residence where you are living or answer the telephone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest.

[93]      I am just going to stop right here, A.H. Do you understand all these conditions so far?

[94]      THE ACCUSED:  Yes, I do, thank you.

[95]      THE COURT:  All right, thank you.

[96]      3209-3: If your conditional sentence supervisor permits you to be outside your residence during your house arrest, you must carry the permission with you in paper or electronic form and show it to any peace officer finding you outside your residence during your house arrest hours.

[97]      3219: You must provide your conditional sentence supervisor with details of your employment and intimate relationship status. You must inform your supervisor within two business days of any employment or intimate relationship status change.

[98]      3400: You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription given to you by a medical doctor who is a member in good standing of the College of Physicians and Surgeons of British Columbia.

[99]      Do you understand all of those conditions, A.H.?

[100]   THE ACCUSED:  Yes, I do, thank you.

[101]   THE COURT:  3403: You must not enter into any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business from which minors are prohibited at any time by the terms of a liquor licence.

[102]   3501: You must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your conditional sentence supervisor.

[103]   3509: You must complete 60 hours of community work service under the direction of your conditional sentence supervisor. Your community work service must be completed by October 31, 2025.

[104]   Do you understand all of those conditions, sir?

[105]   THE ACCUSED:  Yes, I do.

[106]   THE COURT:  3610: You must not possess, directly or indirectly, any weapon as defined by the Criminal Code, including but not limited to:

[107]   3616: You must not possess knives, axes, or other sharp-bladed instruments designed to be used or intended to be used to cut things. The exceptions are: 

[108]   3616-D: If a peace officer finds you in possession of one or more knives, axes, or other sharp-bladed instruments designed to be used or intended to cut things and requests to see the written permission of your conditional sentence supervisor allowing you to possess the item, you must show it to the officer.

[109]   Do you understand all those conditions, sir?

[110]   THE ACCUSED:  Yes, I do.

[111]   THE COURT:  All right.

[112]   2000-1: You must comply with the probation order for a term of three years. The conditions are:

[113]   2001: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change in employment or occupation.

[114]   2104: You must report in person to a probation officer at the Prince Rupert Community Corrections Office within two business days after completion of your conditional sentence unless you have obtained written permission from a probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by your probation officer.

[115]   When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep, and your telephone number if you have one. You must not change your address or location where you live and regularly sleep, or your telephone number, without prior written permission from your probation officer.

[116]   Do you understand all those conditions, sir?

[117]   THE ACCUSED:  Yes, I do.

[118]   THE COURT:  2209-1: You must obey a curfew for the first year of your probation by being inside your residence or within 10 metres of the front door of your residence between 10:00 p.m. and 8:00 a.m. daily. The exceptions are as follows:

[119]   2002: You must have no contact or communication, directly or indirectly, with J.S.

[120]   2003: You must not distribute, publish, post, or make publicly available in any way information, including comments and images, which refer to or depict J.S.

[121]   2005-1: You must not go to or be within 100 metres of any place where J.S. lives, works, attends school, worships, or happens to be. You must leave her presence immediately without words or gestures if you see her.

[122]   Do you have any questions about those conditions, sir?

[123]   THE ACCUSED:  None, sir. thank you.

[124]   THE COURT:  You understand ‑- you understand them all?

[125]   THE ACCUSED:  Yes, I do.

[126]   THE COURT:  Okay. 2212: You must provide your probation officer with details of your employment and intimate relationship status. You must inform your probation officer within two business days of any employment or intimate relationship status change.

[127]   3400: You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription given to you by a medical doctor who is a member in good standing of the College of Physicians and Surgeons of British Columbia.

[128]   3403: You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business from which minors are prohibited at any time by the terms of a liquor licence.

[129]   Any questions about those terms, sir?

[130]   THE ACCUSED:  No.

[131]   THE COURT:  You understand them all?

[132]   THE ACCUSED:  Yes, I do.

[133]   THE COURT:  All right. 2501: You must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer.

[134]   2610: You must not possess, directly or indirectly, any weapon as defined by the Criminal Code, including but not limited to: firearms and ammunition; crossbows, prohibited or restricted weapons or devices, or explosive substances; anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; any imitation firearms or weapons, including any compressed air guns, BB or pellet guns. You must not apply for any related authorizations, licences, or registration certificates.

[135]   You must not possess knives, axes, or other sharp-bladed instruments designed to be used or intended to be used to cut things. The exceptions are: 

[136]   3616-D: If a peace officer finds you in possession of one or more knives, axes, or other sharp-bladed instruments designed to be used or intended to cut things and requests to see the written permission of your probation officer allowing you to possess the item, you must show it to the officer.

[137]   Do you understand all those conditions, sir?

[138]   THE ACCUSED:  Yes, I do.

[139]   THE COURT:  Any questions about any of the conditions at all?

[140]   THE ACCUSED:  Just that my probation, is it in Terrace that I'll be reporting to? Terrace office?

[141]   THE COURT:  That will be ‑- you are going to ‑- yes, so you are going to report to Prince Rupert either today before you leave town or tomorrow before three o'clock. They will transfer the probation to the Terrace office, I am assuming, but because this is a Prince Rupert file, I am having ‑- I appreciate you probably have an officer you are attending to in Terrace right now, but I am having you just drop in at Prince Rupert, and they may very well turn around and just say, "Hey, go to the Terrace office."

[142]   THE ACCUSED:  Thank you.

[143]   THE COURT: 

[144]   Count 1 on Information 30900-1 is a primary designated offence. Under s. 487.051(1) of the Criminal Code, I authorize taking samples of bodily substances from you. You must attend to the Terrace Royal Canadian Mounted Police Detachment in Terrace, British Columbia, by no later than May 30, 2024, and submit to the taking of the DNA samples. This order is valid until executed.

[145]   As required by s. 109 of the Criminal Code, you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years from today. You are also prohibited from possessing any prohibited or restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

[146]   On October 26, 2023, Bill S-12 changed the Criminal Code sections about imposing a reporting obligation under the SOIRA. The provisions of s. 490.012, which are currently in force and apply to A.H., read as follows:

[147]   "Designated offence" is defined in s. 490.011 of the Criminal Code and includes s. 271.

[148]   The duration of any imposed SOIRA order is governed by s. 490.013. As the prosecution proceeded by way of indictment, the following sections of the Criminal Code are relevant:

[149]   Having considered the factors set out above related to whether the court should impose a SOIRA order, I am of the belief that a SOIRA order is appropriate in A.H.'s case, and accordingly I make an order in Form 52 requiring A.H. to comply with the SOIRA for a period of 20 years.

[150]   That is my decision.

[151]   A.H., any questions?

[152]   THE ACCUSED:  I don't have any questions, thank you.

[153]   THE COURT:  All right. I am not waiving the requirement that a justice of the peace read the conditional sentence order, the probation order, and the other ancillary orders to you, and I am not waiving the requirement that you sign the respective orders.

[154]   Mr. Rines, anything from your perspective?

[155]   CNSL E. RINES:  I don't believe so. Nothing ‑- nothing jumped out that I missed, Your Honour. Your Honour, I would just note, I didn't make a note with regards to the duration of the probation, so I'd just ask with regards to that for my own personal notes.

[156]   THE COURT:  Three years.

[157]   CNSL E. RINES:  Thank you, Your Honour.

[158]   THE COURT:  So it is a total of five years minus one day.

[159]   CNSL E. RINES:  Nothing further from the Crown, Your Honour, no questions.

[160]   THE COURT:  Thank you. Ms. Fadden, anything from your perspective?

[161]   CNSL L. FADDEN:  No, Your Honour, thank you very much.

[162]   THE COURT:  Thank you, everyone. I want to say thank you to both lawyers involved in this case, and I apologize to J.S. that it took so long to get to here today.

[163]   And A.H., moving forward, you need to know that you need to not violate any of the terms of the conditional sentence order or the probation, because if you do so, you will be charged with a separate criminal offence. You could be arrested. You could be incarcerated pending your trial. And I mean this when I say this, good luck moving forward.

[164]   Thank you to everybody.