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R. v. J.M., 2019 BCPC 235 (CanLII)

Date:
2019-10-11
File number:
24974-1
Citation:
R. v. J.M., 2019 BCPC 235 (CanLII), <https://canlii.ca/t/j2vg7>, retrieved on 2024-03-28

Citation:

R. v. J.M.

 

2019 BCPC 235

Date:

20191011

File No:

24974-1

Registry:

Smithers

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

REGINA

 

 

v.

 

 

J.M.

 

 

Publication Ban Pursuant to Section 486.4(1) of the Criminal Code

 

 

REASONS FOR SENTENCE

OF THE

HONOURABLE JUDGE J.T. DOULIS

 

 

 

 

Counsel for the Crown:

Feinberg, L., Avery, S.

Counsel for the Defendant:

Murphey, M.

Place of Hearing:

Smithers, B.C.

Date of Hearing:

September 13, 2019

Date of Judgment:

October 11, 2019


Introduction

[1]           On May 10, 2019, after a seven-day trial, I convicted J.M. of the following offences under Information 24974-1:

Count 1, charging J.M. from July 1, 2013 to July 1, 2015, inclusive, at or near [omitted for publication], BC, with sexual interference of C.B., a person under the age of sixteen years, contrary to Section 151 of the Criminal Code.

Count 2, charging J.M. from July 1, 2013 to July 1, 2015, inclusive, at or near [omitted for publication], BC, with sexual assaulting C.B. contrary to Section 271 of the Criminal Code.

Count 4, charging J.M. from November 1, 2017 to November 30, 2017, inclusive, at or near [omitted for publication], B.C., with sexually assaulting C.B., contrary to s. 271 of the Criminal Code.

[2]           On May 10, 2019, I acquitted J.M. of Count 3 which charged him with sexually exploiting C.B. from November 1, 2017, to November 30, 2017, at or near [omitted for publication], B.C.

[3]           On May 10, 2019, pursuant to the principle against multiple convictions espoused in R. v. Kienapple, 1974 CanLII 14 (SCC), I directed a conditional judicial stay of proceedings of Count 2, charging J.M. with sexually assaulting C.B. between July 1, 2013, and July 15, 2015.

Issues

[4]           The issue for the court is to determine a fit and proper sentence taking into account all of the relevant purposes and principles of sentencing, the circumstances of the offence and the particular circumstances of the offender, J.M.

[5]           This matter came before me for a sentencing hearing on September 13, 2019. At that time, I heard submissions of counsel and received their authorities. I also received into evidence the following exhibits:

Exhibit 1: a Presentence Report from Community Corrections ordered on May 10, 2019 and filed July 11, 2019;

Exhibit 2: a Psychological Risk Assessment from Forensic Psychiatric Services Commission, ordered May 10, 2010, and filed on July 11, 2019;

Exhibit 3: the Victim Impact Statement of C.B.;

Exhibit 4: J.M.’s Justin Conviction List as of September 13, 2019; and

Exhibit 5: a transcript from the Proceedings of Sentencing on December 21, 2016, in R. v. J.M., [omitted for publication], Court file [omitted for publication].

[6]           Following his counsel’s sentencing submissions, J.M. addressed the court and J.M. Murphey presented to the court the statement of T.M. At the conclusion of the sentencing hearing I reserved my decision; these are my reasons for sentence.

Circumstances of the Offences

[7]           The circumstances of the offences are set out in R. v. J.M., 2019 BCPC 105 (CanLII). Briefly, I accepted the evidence of C.B. (“C.B.”) of five incidents of sexual touching that occurred during the offence period charged under Count 1 of Information 24974-1. All of these incidents occurred when C.B. was 14 or 15 years old and a foster child in J.M. and T.M.’s care. The incidents included fondling, digital penetration, cunnilingus, fellatio, vaginal and anal intercourse. One incident occurred in J.M.’s truck when he was giving C.B. a ride home after she went to the library and four incidents occurred in J.M. and T.M.’s home where C.B. resided. C.B. was a virgin at the time. The sexual touching made her feel “really weird and awkward and horrible” and she found the intercourse painful. The anal intercourse was particularly painful and caused her to bleed from her rectum.

[8]           I also accepted C.B.’s evidence with respect to one incident of sexual assault charged in Count 4, which occurred in November 2017 when C.B. was 17 and no longer living in J.M. and T.M.’s home. It occurred when J.M. took C.B. to his new residence on [omitted for publication] in [omitted for publication], BC, where he had non-consensual sexual intercourse with her. C.B. had not anticipated this would happen, and although she did not ostentatiously protest the sexual activity, neither did she consent to it, and afterwards felt awkward, sore and used. J.M. insisted no sexual activity occurred and did not advance a defence of honest but mistaken belief in C.B.’s consent.

[9]           Approximately three weeks after their sexual encounter in November 2017, J.M. began communicating with C.B. on Facebook Messenger. These communications came to the attention of C.B.’s stepmother who reported them to social workers at the Ministry of Child and Family Development, who in turn reported the communications to the police. It was these text messages which ultimately led to J.M. being charged with the offences of sexual interference, sexual assault, and sexual exploitation.

[10]        J.M. steadfastly denied and continues to deny having sexual contact with C.B. in any way, at any time, in any place, for any reason. There was no independent evidence to contradict J.M.’s bare denial of the offences, apart from C.B.’s testimony. I believed the incidents of sexual contact occurred as C.B. described them. I considered J.M.’s denials in the context of the evidence as a whole and I did not believe them. On May 10, 2019, I convicted J.M. of the offences now before me for sentencing.

Circumstances of the Offender

[11]        J.M.’s personal circumstances are set out in the Presentence Report (Exhibit 1) and Psychological Risk Assessment Report (Exhibit 2).

[12]        J.M. was born on [omitted for publication], and is now 53 years old. He was raised by his parents in [omitted for publication], until they separated when J.M. was 14 years old. J.M. then lived with his father in [omitted for publication], BC, for a few years where he attended high school. J.M. returned to finish his high school education in [omitted for publication], BC.

[13]        J.M. is trained as an automotive mechanic and has been employed in that capacity for local car dealerships most of his working life.

[14]        J.M. and T.M. married in 1992 and divorced in 2016. They have four daughters, who are now ages 26, 24, 21 and 19. Although their marriage came to a cataclysmic end, J.M. and T.M.’s current relationship is cordial and supportive. T.M. attended the sentencing hearing and confirmed her and their daughters’ support for J.M.

[15]        J.M. has and continues to be steadily employed as an automotive mechanic. He is able to budget his modest annual income of $45,000 to cover his mortgage, utilities, transportation and household expenses. He also paid spousal and child support to his wife after their separation in 2016, in the amount of $1,500 per month. He continues to assist his family by providing them with vehicles and firewood.

[16]        When he is not working, J.M. spends a great deal of time maintaining vehicles for himself, his family and friends.

[17]        J.M. has no addictions and at most, consumes one beer per day. He has no physical or psychiatric illnesses; he takes no psychiatric medications; and he does not suffer from any personality disorders.

[18]        Since his troubles in the recent years, which includes his divorce, convictions for violent offences against T.M., and now convictions for sexual offences against C.B., J.M. has participated in counselling therapy. He continues to profess his innocence of the sexual offences against C.B.; nevertheless, J.M. has engaged in counselling and expressed his willingness to continue to do so.

Criminal Record

[19]        On December 21, 2016, J.M. was convicted of three violent offences against his ex-wife, T.M.: (a) pointing a firearm (s. 87.1 CC); (b) uttering threats to cause death or bodily harm (s. 264.1(1)(a) CC); and (c) assault (s. 266 CC). All of these offences occurred on June 5, 2016, at the family residence on [omitted for publication] near [omitted for publication], BC. The firearm, a shotgun, was unloaded at the time of the offence. J.M. received a four month conditional sentence followed by 12 months’ probation plus a 10 year firearms’ prohibition. J.M.’s only other criminal offence is from November 21, 2001, when he was convicted under s. 144(1)(b) of the Motor Vehicle Act for driving without reasonable consideration of others, and was fined $200.

[20]        Between his conditional sentence, probation, and bail, J.M. has been subject to court-ordered conditions for three years. There is no reported breaches of those court orders beyond his failure to “keep the peace and be of good behaviour” in November 2017, by sexually offending against C.B.

Presentence Reports

[21]        The court received a psychological risk assessment from Dr. Clifford Kerr, a psychiatrist in the employ of the Forensic Psychiatric Services Commission, and a presentence report prepared by Probation Officer (“PO”) Patricia Braiden, of [omitted for publication], Community Corrections. In both reports, J.M. denied committing the offences, otherwise, he participated in the assessment process.

[22]        The court cannot consider J.M.’s refusal to admit the offences to the psychiatrist or probation officer an aggravating factor in sentencing. In R. v. Funk, 2014 BCSC 383 (CanLII), Mr. Justice Davies held an offender’s residual right against self-incrimination is protected under s. 7 of the Charter of Rights and Freedoms and does not evaporate post-conviction. An offender cannot be compelled to adduce inculpatory evidence if he chooses not to do so. The offender cannot be punished for not fully participating in the assessment, nor can the court make an adverse inference with respect to his refusal to participate: R. v. Donovan, 2004 NBCA 55.

Psychiatric Risk Assessment

[23]        Dr. Kerr opined that J.M. presents a low risk to reoffend. In formulating this opinion, Dr. Kerr considered J.M.’s personal circumstances, past and present. J.M. is pro-social; he has no medical, psychiatric, cognitive, emotional or addiction issues. He is gainfully employed and has a good relationship with his daughters and ex‑spouse. Dr. Kerr also relied on my findings that it was likely C.B. who initiated the first incident of sexual contact and J.M.’s offences were opportunistic and situational and did not involve grooming. I gather from comments C.B. made about herself and her apparel in her statement to Constable Heuberger that at the time of the sexual offences, C.B. was a fully-developed teenage girl. In other words, she was neither prepubescent nor did she appear to be so. Dr. Kerr made no suggestion J.M. suffers from a pedophilic disorder.

[24]        I note Dr. Kerr seems to have misunderstood the offences for which J.M. was convicted in December 21, 2016, and on May 10, 2019. He seems to believe that in each instance, J.M. was convicted of all the offences for which he was originally charged, which was not the case.

Victim Impact Statement

[25]        Section 722 of the Criminal Code directs a sentencing judge to consider a victim impact statement for “the purpose of determining the sentence to be imposed.” In R. v. Berner, 2013 BCCA 188 (CanLII), the Court of Appeal held (at para. 12) that victim impact statements play an important role in the sentencing process. At para. 13, the appellate court stated “the content of the statement is restricted to a description of “the harm done to, or loss suffered by, the victim arising from the commission of the offence.”

[26]        At trial, C.B. testified:

Then, when all this happened I was emotionally wrecked, for sure. I was stressed out about it too. But I was emotionally unstable, because I didn’t know how to handle it and like I said in the video, sex is supposed to be with two partners that make love or that love each other, in this situation, it wasn’t even close. So, that hurt as well.

[27]        C.B. also provided a formal Victim Impact Statement (Exhibit 3) in which she says:

I trusted him, but he was not trustworthy.

I wanted to live a Christian life but he took that away from me. My desire for a Christian relationship was ruined and I no longer felt like a Christian.

I had no voice and still work to have one.

I lost all my ideas and views of what love is.

[28]        C.B. told PO Braiden she experienced a lot of trauma in her past and learned the importance of “moving on with life”, which is what she intends to do. Still, it is clear from her testimony at trial the sexual abuse diminished C.B.’s sense of self-worth. In her January 10, 2018, video-recorded statement to Constable Heuberger, C.B. expressed disappointment in herself for succumbing to temptation and falling into one of “Satan’s traps.” In cross-examination C.B. stated:

A. …the secret was always with me. I felt horrible myself. And I didn’t want to talk about it because I was disgusted with myself. I didn’t want people to know.

Q. Didn’t want them to know what?

A. Mostly that I sinned. Because I grew up in Christian homes. There are things you shouldn’t say. There are things that are even awkward. So, when I grew up in a lot of homes, it was even awkward to say like boobs. It was awkward to say anything. So when you feel you did something is wrong, sometimes it is hard to tell someone else who might think it’s even worse. I didn’t really know how to say anything either or how to bring it up. I wanted to tell people, I just didn’t know how.

Legislative Framework

Maximum and Minimum Sentences

[29]        In this matter the Crown has proceeded by indictment. In July 2013 an offence of sexual interference and sexual assault charged under ss. 151 and 271 of the Criminal Code, where the Crown has proceeded by indictment, attracted a maximum term of imprisonment of 10 years and a minimum sentence of one year. This was the penalty when J.M. committed the offence of sexual interference charged in Count 1.

[30]        On July 17, 2015, the Tougher Penalties for Child Predators Act, SC 2015, c 23, came into force. The Parliament legislated new penalties for sexual offences against children. The maximum sentence for ss. 151 and 271 offences when charged indictably was increased to 14 years and the minimum sentence remained one year. The court accepts the increase in the maximum sentence is a legislative signal that sexual offences are to be treated more seriously than they have in the past. In R. v. Vautour, 2016 BCCA 497 (CanLII), Justice Kirkpatrick commented (at para. 54) “for too long crimes such as this, involving children and inflicted by persons in a position of trust, have attracted unwarranted leniency.”

[31]        Recently, in R. v. Scofield, 2019 BCCA 3 (CanLII), and its companion case R. v. Horswill, 2019 BCCA 2 (CanLII), the B.C. Court of Appeal held the mandatory minimum sentence set out in s. 151 was unconstitutional and of no force and effect. In R. v. E.R.D.R., 2016 BCSC 1759 (CanLII), Madam Justice Beames also found unconstitutional the mandatory minimum one year sentence for a sexual assault against a person under the age of 16.

Purpose and Principles of Sentencing

[32]        Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, which is to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions, to have one or more of the following objectives: (a) denunciation; (b) deterrence; (c) protection of the public; (d) rehabilitation of the offender; (e) reparation to victims; and (f) promotion of a sense of responsibility in the offender.

[33]        Section 718 codifies the common law principles of sentencing: R. v. Nasogaluak, 2010 SCC 6 (CanLII), at para. 39.

[34]        Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. It includes two components: (a) the harm or likely harm to the victim; and (b) the harm or likely harm to society and its values: R. v. Lacasse, 2015 SCC 64 (CanLII), at para. 130. The Supreme Court of Canada has held that proportionality as articulated in s. 718.1 is a fundamental principle of sentencing - “the sine qua non of a just sanction”. It is grounded in elemental notions of justice and fairness, and is indispensable to the public’s confidence in the justice system”: R. v. SafarzadehMarkhali, 2016 SCC 14, para. 70.

[35]        Section 718.01 of the Code directs the court to give primary consideration to deterrence and denunciation when sentencing for any offence involving abuse of a person under 18. Other important sentencing considerations are set out in section 718.2, which states a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Today, the Criminal Code legislates the following factors as aggravating: (a) s.718.2(a)(ii.1), the young age of the victims; (b) s. 718.2(a)(iii), the offender was in a position of trust or authority in relation to the victim; and (c) s. 718.2(a)(iii.1), the offence had a significant impact on the victim.

[36]        On September 19, 2019, s. 718.04 of the Criminal Code came into effect. It states:

When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female – the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

[37]        Although the offences and J.M.’s conviction for those offences predate s. 718.04 coming into force, I do not consider it a substantive change to the principles in play at a sentencing hearing. Section 718.2(a)(iii.1) already requires a sentencing judge to take into consideration the impact of the offence on the victim. In my view, a victim’s vulnerability to sexual violation and its impact are two sides of the same coin. Moreover, courts have long recognized the victim’s vulnerability as an aggravating factor in sentencing child sex offenders: see R. v. Klassen, 2012 BCCA 405 (CanLII); R. v. Seagull, 2013 BCSC 1811 (CanLII), para. 53; R. v. Pappas, 2005 BCSC 1431 cited in R. v. D.C.E., 2012 BCPC 491 (CanLII), at para. 34; R. v. Roberts, 2015 BCPC 266 (CanLII); and R. v. Campbell-Ball, 2019 SKCA 41, para. 60.

[38]        C.B. was a child-in-care who had been in multiple foster homes before she aged out earlier this year. C.B. told Constable Heuberger she had been in an abusive home when she was young. Foster children are vulnerable in a way that transcends their age. Negative stereotypical depictions of foster homes abound, as do negative stereotypes of foster children. It is profoundly unfair to the well-meaning and compassionate persons who endeavour to provide a safe and loving home to society’s physically, psychologically and emotionally bruised and broken children. Equally unfair is to assume foster children are so damaged they are without conscience.

[39]        I have no reason to believe J.M. and T.M. did not take C.B. into their home with the best of intentions. Unfortunately, C.B.’s relationship with the T.M quickly and completely unravelled. C.B. described J.M. and T.M.’s residence to PO Braiden as a “very angry home” where she argued a lot with T.M. I was left with the impression from T.M.’s evidence that during her two-year placement with the J.M. and T.M., C.B. was incessantly mistrusted, managed and monitored. The J.M. and T.M.’s residence was not a loving home for C.B. as it was for J.M. and T.M.’s own daughters. At best it was a waystation where C.B. was warehoused until it was time for her to move on. I conclude that insecurity, loneliness and rejection made C.B. exceptionally vulnerable to sexual abuse.

[40]        Section 718.2(b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. In Ipeelee, the Supreme Court held the “parity principle… means that any disparity between sanctions for different offenders needs to be justified.” In Canada the appellate courts diverge on the application of parity in sexual offences. In R. v. Williams, 2019 BCCA 295 (CanLII), the Court of Appeal held (at paras. 53 to 57) that in BC, as in most provinces, the appellate courts adopted the approach of sentencing ranges for a particular offence. Smith JA for the appellate court in Williams stated (at para. 57) that sentencing ranges “provide an optimal balance between furthering parity and individualization in a sentence. … They are intended to assist judges in arriving at a sentence that is consistent with sentences for similarly situated offenders, in similar circumstances…"

[41]        Section 728.2(c) codifies the totality principle which holds that where sentences are imposed consecutively, the combined sentence should not be unduly long or harsh: a sentence should not exceed the overall culpability of the offender: see R. v. G.F., 2018 BCCA 339 (CanLII). It may offend the totality principle if it is substantially above the normal level of a sentence for the most serious of the individual offences involved, or its effect is crushing and not in keeping with the offender’s record and prospects: R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500.

[42]        Sections 718.2(d) and 718.2(e) codify the restraint principle which holds an offender should not be deprived of liberty if less restrictive principles may be appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders: s. 718.2(e).

Sentencing Principles for Child Abuse

[43]        Many of the authorities provided to the court in this sentencing hearing reference R. v. D.(D.), 2002 CanLII 44915 (ON CA), and R. v. Woodward, 2011 ONCA 610, which emphasize that children are our most valued and most vulnerable assets and society has a duty to protect them from the harm caused by sexual predators. The harm is enduring, intergenerational and well-recognized. In R. v. K.R.J. 2016 SCC 31 (CanLII), Justice Karakatsanis, for the majority, noted at para. 83, that sexual offences against children have “persisted for centuries.” Justice Brown (in dissent) goes on to discuss the societal impact of those offences:

[131] … Their legacy is toxic. They are notorious for their devastating impact, often ruining the lives of their victims, and of those whose lives intersect with those victims as they move into adulthood. Trauma from childhood sexual abuse may reverberate for generations, creating pernicious cycles of abuse.

[44]        Over 20 years ago Abella JA (as she then was), in R. v. Stuckless, 1998 CanLII 7143 (ONCA), described the impact of sexual abuse on a child:

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

[45]        Accordingly, in cases of child sexual abuse, the objectives of denunciation, deterrence and the need to separate sexual predators from society takes precedence: R. v. E.S., 2017 BCCA 354 at paras. 53 and 58, citing Woodward and R. v. O.M., 2009 BCCA 287, at para. 60; G.F., at para 49. In R. v. R.E.L., 2010 BCCA 493, Chief Justice Hinkson states at para. 10:

The harm to young children that results from sexual assaults is well known, and recognized by the requirement that denunciation and deterrence must be a primary sentencing consideration pursuant to s. 718.01 of the Criminal Code. Such assaults not only violate the child’s physical integrity, but erode the child’s ability to develop emotional trust, and create the sort of profound and long-lasting consequences that are evident in the appellant’s victim.

[46]        Both the Crown and defence have provided case law in support of their respective positions on sentence. I have considered these along with other authorities I have found helpful. I am mindful of Mr. Justice LeBel’s caution (at para. 44) in Nasogaluak, that general ranges are not hard and fast rules to be applied to the sentencing process, but are guidelines for the judge to follow to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code.

Individualization in Sentencing

[47]        Sentencing is a highly individualized process. A fit sentence is one which is proportionate to the gravity of the offence and the degree of responsibility of the offender. The correctional imperative of sentence individualization informs the sentencing process: R. v. Pham, 2013 SCC 15 at para. 8, thus, proportionality is determined both individually and comparatively. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2(a) and (b) of the Criminal Code: Williams, at para. 51 citing Lacasse at paras. 53–54.

[48]        In arriving at a fit sentence, case authorities are helpful, but not determinative. The myriad of relevant factors generate a significant variation in the range of sentences, particularly in sexual offences of children. Justice Saunders’ words in R. v. Wesley, 2014 BCCA 321, are apposite:

[25]  Notwithstanding the able submissions on behalf of the appellant, it does not appear to me that the cases establish two tight ranges of sentence, two to four years and five to eight years, as contended. In the case of sexual assault of children the variables are considerable, the background of the offenders are so different, the range of offending behaviour is so broad, the nuances of relationship between offender and victim are so varied, and the needs of the community involved are so disparate that I do not consider the cases can be separated into the two tight divisions posited.

[49]        Saunders JA cautioned sentencing judges from over-reliance upon appellate decisions to determine the appropriate range of sentence. She states at para. 26:

In considering the many cases presented for our assistance, I observe first that many of them were appeals by the offender where the question was whether the sentence was beyond the appropriate range. Dismissal of those appeals does not tell us where the top of the range is, rather it tells us what is not the top of the range. Such cases, therefore, do not provide a great deal of help in determining whether this sentence exceeds the top of the appropriate range.

[50]        Nevertheless, as Justice Hunter comments in E.S., at para. 62, sentencing ranges do serve a useful purpose in determining a fit sentence:

While sentencing ranges are to be treated as guidelines only, and sentences must always be individualized to the offender, these statements provide appropriate yardsticks to measure the fitness of a sentence for the type of offence committed by this appellant.

Crown’s Position on Sentencing

[51]        The Crown proposes a fit and proper sentence for J.M. is eight years’ jail, together with various mandatory and discretionary ancillary orders. Specifically, the Crown submits a fit sentence on Count 1 for sexual interference between 2013 and 2015, is five years. For Count 4, the sexual assault in 2017, the Crown submits a fit sentence is four years reduced to three to take into account totality. The sentences on Counts 1 and 4 ought to be served consecutively.

[52]        In support of its position, the Crown relies on the following authorities: (a) R. v. D.N., 2018 BCCA 190; (b) R. v. E.T.K., 2016 BCPC 346; (c) R. v. E.S., 2017 BCCA 354; (d) R. v. G.M., 2015 BCCA 165; (e) R. v. H.C.T.T., 2018 BCSC 2341; (f) R. v. K.J.M., 2016 BCPC 306; (g) R. v. K.S.T., 2019 BCPC 112; (h) R. v. M.P.S., 2016 BCSC 1175; (i) R. v. M.P.S., 2017 BCCA 397; (j) R. v. R.A.J., 2010 BCCA 304; (k) R. v. S.S.S., 2018 BCSC 2470. All of the Crown’s cases, save G.M., involve sexual offences against children under the age of 16.

Count 1: Sexual Interference

[53]        With respect to the offence of sexual interference charged under Count 1, the Crown relies on R. v. T.A.D.(1995), 68 B.C.A.C. 236, wherein the BC Court of Appeal stated that in a case involving sexual offences against children over an extended period, the appellate court has upheld sentences of up to 12 years or more, but the usual range is from 5 to 8 or 9 years. T.A.D. is referenced in D.N. at paras. 97 and 98; R.A.J., at para, 26; E.S. at para. 61; R.E.L., at para. 21; G.F., at para. 50. The Crown points out in S.S.S., at para. 80, Justice Schultes’ comment in that sentences below the 5 to 9 year range are usually in the context of a guilty plea which the courts recognize as a significant mitigating factor and an expression of remorse.

[54]        In all the Crown’s cases the offender had breached a position in trust; the offences were highly intrusive of the victim’s bodily integrity and most involved various forms of penetration. Also, in many of Crown’s authorities, the frequency, duration, and age of the victim were far more aggravating than is present in this case. In some cases the victim became pregnant, in others, the sexual abuse was accompanied by extensive grooming, coercion, making pornography or gratuitous violence. The sentences range from a low of 4.5 years’ jail in K.S.T., to a high of 8 years in D.N., R.A.J., K.J.M., E.T.K., and M.P.S. In E.S., the court imposed a sentence of 6 years’ jail, in S.S.S., 7 years, and in H.C.T.T., 7.5 years. It bears reiteration that in J.M.’s case, the Crown is only seeking a 5 year jail sentence for the sexual interference conviction.

Count 4: Sexual Assault

[55]        The Crown submits the range of sentences for sexual assault involving intercourse with a person over the age of 16 is 2 to 6 years: see G.M., para. 22, citing R. v. B.S.B., 2010 BCCA 40 at para. 6, and R. v. Pouce Coupe, at para. 31.

Defence Sentencing Authorities

[56]        The defence submits a fit sentence for J.M. is between 2.5 years and 3 years’ jail. In support of its proposition the defence relies on the following authorities: (a) R. v. P.D., 1999 CanLII 3777 (ONCA); (b) R. v. M., 2000 BCSC 683; (c) R. v. C.G.D., 2009 BCSC 404; (d) R. v. C.K.B., 2012 BCPC 482; (e) R. v. R.E.M., 2005 BCSC 698; (f) R. v. Rich, 2014 BCCA 24; (g) R. v. K., 2016 BCSC 1637, and (h) R. v. Melendez, 2016 BCPC 91.

[57]        In most of the defence cases the victim was younger than C.B. when the abuse began, involved far more incidents of sexual touching and carried on far longer than it did in this case. In every case the court imposed sentences less than the five years’ jail the Crown seeks for the offence of sexual interference. The courts imposed jail sentences ranging from a low of 18 months in R.E.M., to a high of four years in C.K.B. In M. and Melendez the court imposed a sentence of two years less one day followed by probation; in Rich, 2.5 years; in K., 30 months; and in C.G.D., three years. I note R.E.M. appealed his 18 month custodial sentence and Justice Low for the BC Court of Appeal, in R. v. R.E.M., 2008 BCCA 516, stated:

[5]  The appellant had sexual intercourse with the victim when she was as young as nine years of age. The abuse was not as frequent as in some historical cases of this kind but it did not cease until the victim ran away from home at age seventeen. The circumstances of these offences were egregious. The sentence imposed was at or below the low end of the range for offences committed by similar offenders in similar circumstances. 

[58]        Three of the defence authorities, namely, P.D., C.G.D., and C.K.B, involve guilty pleas, which are highly mitigating. Five cases, P.D., M., R.E.M., Rich, and K., involve convictions for sexual assaults committed at a time when the statutory maximum sentence was ten rather than 14 years, and s. 718.01 of the Criminal Code had not yet been enacted. Historical sex assault cases, such as R.E.M., Rich and K., generally result in lower sentences: see R. v. T.J.B., 2015 BCSC 855, para. 4; R. v. J.R.A.C., 2014 BCSC 2163 (CanLII), para. 40; R.E.L. However, offending against a child under the common law has always been aggravating and called for a denunciatory and deterrent sentence: see in K., at para. 36, E.S., para. 52, citing R. v. S.B.T., 2010 BCCA 145.

[59]        In R. v. Worthington, 2012 BCCA 454, the BC Court of Appeal commented at paras. 34 and 35 that authorities from a former era may not reflect the appropriate balance of principles now required by the Criminal Code, particularly when the maximum sentence was lower. In R. v. A.E.S., 2018 BCCA 478, the appellate court found the sentencing judge erred by relying on cases to settle a range that were not appropriate to the offences and facts before her. Madam Justice Bennett, writing for the court, stated at paras. 61-62:

I readily acknowledge that over time there has been an increasing recognition by the courts that sexual offences against children are likely to be extremely damaging to their victims, and this case is no exception. The victims in this case suffered greatly because of their father’s assaults against them.

However, a sentencing court cannot overlook the maximum penalty in effect at the time, which defined the outer end of sentencing options, and how that maximum would affect the fit range of sentences.

Range of Sentence

[60]        Not surprisingly, none of the authorities provided by counsel are on “all fours” with the case before me. Each case can be distinguished by the facts and sometimes by the questions of law. For example, D.N. involved what the sentencing judge referred to as “dramatically aggravating circumstances”, such as the young age of the victim when the offending began (age six or seven), its duration (eight years) and escalating nature, the offender’s flight from justice and breach of his no-contact bail order. In order to give sufficient effect to the parity principle in the context of this case, I have considered a number of cases including those provided by counsel and many of the authorities referred to in those cases. I have appended a shorthand summary of my review to this decision. The surfeit of cases underscores ubiquity of child abuse. I find Justice Schultes’ comments in R. v. Rosario, 2018 BCSC 2483 apposite:

[76]  Obviously every sentence must be individually tailored, by balancing the aggravating and mitigating factors and the specific principles of sentence that are entitled to the greatest weight in those circumstances. But taking the sentences in comparable situations into account when arriving at the ultimate sentence fulfils the equally important statutory sentencing objective of sentencing similar offenders and offences similarly.

[77]  No two sentences are identical and the cases could be parsed endlessly for similarities and differences. What should be sought are meaningful common factors and sentencing principles that influenced the sentences that were ultimately imposed.

Aggravating, Mitigating and Collateral Consequences

[61]        Individualization in sentencing requires the court to consider all aggravating and mitigating circumstances and the collateral consequences. As a result, sentences for offenders convicted of sexual offences against children vary significantly depending on the circumstances. Those circumstances may include: (a) the frequency of the sexual abuse; (b) the severity of the sexual abuse; (c) the duration of the sexual abuse; (d) whether the abuse occurred in the victim’s home; (e) the presence of grooming; (f) the age of the victim; (g) whether the offender was in a position of trust; (h) whether the abuse was accompanied by any gratuitous violence; (i) whether the offender pleaded guilty; (j) whether the offender expressed remorse; (k) the offender’s criminal record; (l) the offender’s age and health; (m) whether the offender was socially disadvantaged; (n) whether the offender presented an ongoing risk to the community; (o) the offender’s family and community support; (p) the offender’s bail conditions; and (q) the impact on the victim.

[62]        Many of the factors cited above have been distilled from Justice Romilly’s decision in H.M.T.Q. v. T.P.C., 2000 BCSC 742, at para. 16, referenced in K.J.M. Some of these factors are either aggravating or mitigating, others, although relevant, are neither. An aggravating factor, either statutorily or judicially mandated, will induce a court to impose a longer sentence than otherwise may be imposed. A mitigating factor will reduce the sentence that might otherwise be imposed. The absence of an aggravating factor does not equate to a mitigating factor or vice versa: see Scofield, paras. 35-36 and R. v. Prince, 2018 BCSC 987 (CanLII), para. 72.

[63]        The Crown bears the burden of proving disputed aggravating factors beyond a reasonable doubt; the defence bears the burden of proving disputed mitigating factors on a balance of probabilities: R. v. Dreger, 2014 BCCA 54, para. 45.

(a) the frequency of the sexual abuse

[64]        Repetitive acts of sexual abuse increases the gravity of the offence and the moral culpability of the offender: R. v. Vautour, 2016 BCCA 497. The sexual abuse charged under Count 1 in this case involved five incidents. The fact there was more than one is aggravating; however, in most, if not all the authorities counsel provided to this court, the abuse involved far more incidents. Some cases involve sexual abuse which occurred daily, or at least several times a week, over a number of years. Before it stopped, the victim was subjected to countless incidents of abuse. In Vautour, for example, the Court of Appeal found the sentencing judge erred by failing to consider that over 4.5 years, the offender had inflicted hundreds of incidents of sexual abuse on the victim. As Justice Schultes comments in S.S.S. (at para. 13), in addition to the 20 specific incidents of abuse the victim identified, she also experienced an “undifferentiated montage of other incidents to which no specific number can be ascribed.”

(b) the severity of the sexual abuse

[65]        Count 1 involved fondling, digital penetration, cunnilingus, fellatio, vaginal and anal intercourse. Count 2 involved vaginal intercourse. These sexual acts were highly intrusive of C.B.’s physical, psychological and sexual integrity. J.M. wore no condom during vaginal intercourse which exacerbated C.B.’s risk of pregnancy and sexually transmitted disease. It is an aggravating factor when a sexual offender takes no measure to safeguard the victim from the potential consequences of unprotected sexual intercourse: see R. v. Jaden, 2018 BCSC 1685, and H.C.T.T., at para. 10. As Judge Keyes commented in R. v. W.J.P., 2016 BCPC 19 (at para. 87), an offender who has already fathered children knows “perfectly well, as does any adult, that pregnancy is the inevitable result of having repeated unprotected vaginal intercourse.”

[66]        The courts now recognize the seriousness of a sexual assault is not dictated by the existence or non-existence of penetration: D.N., at para. 25, citing R. v. Hume, 2016 BCCA 230; R. v. Scofield, 2019 BCCA 3 (CanLII), paras. 35-36; R. v. R.J.B., 2016 BCCA 428 (CanLII), para. 11; In K., at para. 45, and K.S.T., at para. 62. The court cites the following passage from Saunders JA for the BC Court of Appeal in Worthington:

[41] … I would go so far as to say the fact, or not, of penetration is not really the measure of the offence, and what is in issue in a case involving a breach of the trust at the heart of the child-parent relationship is the extent to which that relationship was violated, the duration of that violation, and the offender’s appreciation of that violation as the behaviour continued. We are here concerned with the offence of sexual assault, which is a generic offence that may apply in respect to a complainant of any age, over-laid with the abuse inherent in the youth of the complainant, over-laid with the breach of trust in the family relationship.

[67]        In Worthington, Saunders JA, cited from R. v. W.Q., 2006 CanLII 21035 (ON CA), where the Ontario Court of Appeal referred to its earlier decision in Stuckless:

The absence of penetration does not automatically relegate the sexual abuse of children to the “lower range” of sexual offences. There is no question that “additional force”, “collateral crimes”, and penetration are aggravating factors. But their absence does not thereby transform them into mitigating circumstances, nor neutralize the other aggravating factors found in this case: the abuse of trust, the number of victims, the frequency of the assaults and their devastating impact on the lives of their victims.

[68]        This means the fact there was no intercourse in the first four incidents charged under Count 1 is not mitigating and does not militate towards a lesser sentence. Nevertheless, I find the intercourse which occurred on the fifth incident charged under Count 1 and the sixth incident charged under Count 4 is aggravating because it was painful, highly invasive of C.B.’s bodily integrity, and put her at risk for pregnancy, disease, or injury.

(c) the duration of the sexual abuse

[69]        As with the frequency of the abuse, its duration also affects the gravity of the offence and the moral culpability of the offender: Vautour and S.S.S., para. 38. In H.C.T.T., Justice Harvey notes, at para. 50, the repetitive and ongoing nature of H.C.T.T.’s offending. He states “These were not one-off or explained in any way mitigated by a pattern of behaviour attributable to a psychological deficit or addiction.”

[70]        In this case, the sexual interference charged under Count 1 is from July 1, 2013, to July 1, 2015, which is the entire period of time C.B. lived in J.M. and T.M.’s home as a foster child. It is not the actual duration of the sexual abuse. I found the sexual offences occurred in a cluster sometime after C.B. turned 14. The abuse stopped before C.B. left J.M. and T.M.’s care, even though J.M. still had access to her. Exactly when it stopped is unclear. Equally unclear is who put a stop to it. C.B. simply said the fifth incident was the last incident of sexual activity with J.M. while she lived in his home. I am left with the impression the sexual activity began and ended within a fairly discrete period, perhaps six months or so. The limited duration of the abuse against C.B. is a significant distinguishing factor, as is her age when the abuse began.

[71]        The sixth incident charged under Count 4 began sometime after 4:00 or 4:15 p.m. and ended in time for J.M. to return C.B. to the high school before 5:30.

(d) whether the abuse occurred in the victim’s home

[72]        Four of the six incidents of abuse occurred in C.B.’s own home, which ought to have been a place of safety and security: S.S.S., para. 38; Rosario, para. 48. The other two incidents occurred when C.B. was alone with J.M. and isolated from others.

(e) presence of grooming

[73]        Grooming a victim is an aggravating factor in the context of child sexual abuse: S.S.S., at paras. 38 and 66; T.J.B., at para. 31; and R. v. D.L.W., 2014 BCSC 43, at para. 89. It is a common factor in many sexual offences which have occurred from the time the child is very young until the abuse is eventually disclosed or stopped. For example, in D.N., if the victim wanted a ride or money, the offender would negotiate with her to let him perform sexual acts on her: see D.N., para. 7. In E.S. the offender used “various forms of psychological pressure to force [the victim] to accept the abuse”: see para. 6. In C.G.D., the offender offered his stepdaughter candy for sexual favours, which she refused. In many cases, including, H.C.T.T., the offender used pornography to initiate the complainant into sexual behaviour: see para. 8. In M.P.S., the victims were continually reminded that should they report the sexual abuse, they would “again face terrible disruption in their family life and an uncertain future”: see. M.P.S. (BCSC) para. 11. In K.S.T. as in R. v. G.J.S., 2014 BCSC 1105, the offender extended privileges for permission to sexually abuse the victim. Madam Justice Holmes in G.J.S. (at para. 31) attributes this form of manipulation to intensifying the victim’s feelings of guilt and self-loathing which so unfairly afflicts abused children.

[74]        Grooming is considered a type of predatory behaviour where the offender attempts to prepare the child victim for increasingly more intrusive sexual abuse: In R. v. P.E.S., 2018 MBCA 124, Steel JA explains [Some citations omitted]:

[37]  So, for example, it is common for the perpetrator to start with initial discussions of sexually related topics or watching pornographic videos together which may lead to kissing, touching and other forms of intimate conduct, including oral sex and sexual intercourse… The victim may be offered alcohol or drugs or given gifts of money and jewellery in order to lessen the victim’s inhibitions and to make them more receptive to the sexual overtures. The perpetrator may target a victim who is especially vulnerable because of difficulties at home, immaturity or other similar characteristics.

[38]  Often cases that employ the concept of “grooming” involve conduct that was planned and premeditated (see Kiska). On the other hand, in cases where grooming is not found to have occurred, the conduct is characterised as spontaneous, impulsive, unplanned or spur of the moment.

[39]  In R. v. M.R., 2015 ONSC 7825 (CanLII), the offender volleyball coach was charged with two counts of sexual assault and one count of sexual exploitation involving a teenaged volleyball player. In that case, a clinical child psychologist provided expert evidence about grooming. She described it as follows (at p 31):

She says that it is a gradual desensitization, leading to more intrusive sexual contact. Methods used include creating sexually charged environments through eroticized conversations and offering alcohol as a disinhibitor. The gradual eroticization and feelings of complicity in a victim to requests by an abuser can be effective as threats of harm by an abuser to silence a victim.

[40]  Most recently, the Quebec Court of Appeal addressed the concept of grooming in the luring context in R. v. Rayo, 2018 QCCA 824 (CanLII). In that case, Kasirer JA cited a 2010 study which described grooming as (at para 139):

Grooming is often characterized as seduction – a slow and gradual process of active engagement and a desensitization of the child’s inhibitions – with an increasing gain in power and control over the young person.

[75]        In this case I found no evidence of grooming. It was the fact J.M. made little attempt to build a relationship with C.B. which led me to conclude it was C.B. who likely initiated the sexual activity. J.M. did not orchestrate the first incident, rather he took advantage of an opportunity to engage C.B. in sexual activity when it arose. Still, the fact of a child consenting or initiating sexual activity does not repudiate a trust relationship or the obligation of the adult to decline the invitation. Notwithstanding the consent, desire or wishes of the young person, it is the adult in the position of trust who has the responsibility to decline having any sexual contact whatsoever with that young person: R. v. B.J.T., 2019 ONCA 694, para. 87, citing R. v. Audet, 1996 CanLII 198 (SCC); C.K.B., para.5.

[76]        After the first incident, it was J.M. who initialized the subsequent sexual activity.

[77]        As to Count 4, I have already determined J.M. was no longer in a position of trust towards C.B. I do not consider J.M. and C.B.’s prior sexual activity as evidence of a form of grooming for the November 2017 incident. Nor do I consider J.M. offering C.B. a ride or coffee at the time of the sixth incident as grooming. I am satisfied, however, there was some degree of premeditation in the sexual activity comprising the sixth incidence wherein J.M. took C.B. to his new residence on [omitted for publication] where they had sexual intercourse.

[78]        Although I do not find J.M.’s predatory behaviour amounts to “grooming” as described in P.E.S., it is still aggravating, but to a lesser degree than in cases such as D.L.W. or S.S.S.

(f) the age of the victim

[79]        Here there is no contest C.B. was between the ages of 13 and 17 during the offending periods. Her exact age when the sexual interference occurred is uncertain. I concluded in my Reasons for Judgment the incidents charged in Count 1 likely commenced when she was 14 and ended when she was either 14 or 15.

[80]        There is divergent opinion whether or not the young age of the victim ought to be considered an aggravating factor in sentencing because it is an essential element of the offence of sexual interference. In R. v. Johnston, 2011 NLCA 56 (CanLII), White J.A. for the Newfoundland Court of Appeal found the sentencing judge erred in principle in finding as an aggravating factor in a pornography charge “the nature of the crime itself which involves the victimization of children and the utter destruction of their lives”. White JA states at para. 18:

It is self-evident that an aggravating factor is one that induces a court to impose a sentence that is longer than it would otherwise impose for an offence of the type before it. In order for a factor to be aggravating in a particular case, there must be another case in which it is not present.

[81]        In S.S.S., at para. 67, and again in Rosario, at para. 69, Justice Schultes held that since the victim’s young age was an essential element of the offence of sexual interference, it would be double counting to further aggravate its commission by reference to the statutory factor of her being under 18.

[82]        In R. v. Akumu & Boima, 2017 BCSC 1051 (CanLII), however, Justice Fisher did consider the age of the victim as an aggravating factor as prescribed by s. 718(2)(ii.1) of the Criminal Code even though the age of the victim is an essential element of the offence which also gives rise to a mandatory minimum sentence (para. 62). She states:

[44]  Ms. Hartney submitted that A.W.'s age is not an aggravating circumstance despite s. 718.2(a)(ii.1) because her age is an element of the offence of sexual interference, citing R. v. V.J.S., 2016 SKPC 112 (CanLII). In that case, the court held at para. 34 that “[a]n element of the offence required to establish guilt cannot also serve to aggravate the seriousness of the offence or the degree of responsibility of the offender”.

[45]  While there may be some logic to this line of thinking, it runs contrary to the express words of s. 718.2(a)(ii.1), especially when considered in the context of the sentencing principles generally and the clear direction in s. 718.01. It also runs contrary to many authorities that have considered abuse of a person under 18 as an aggravating circumstance in sentencing offenders for sexual interference and like charges. See, for example, R. v. P.D.W., 2015 BCSC 660 (CanLII); R. v. O.C.M., [2012 B.C.J. No. 2924 (SC); and R. v. Lowney, 2015 BCSC 1721 (CanLII).

[83]        R. v. Mathieson, 2018 YKSC 49 (CanLII), leave ref’d in R. v. Mathieson, 2019 YKCA 6 (CanLII), was a Crown appeal of sentence. At issue was the sentencing judge’s refusal to apply s. 718.01 as a further aggravating factor because the victim’s age was already recognized in s. 271(b) by the mandatory minimum sentence. The sentencing judge reasoned that to further increase the sentence for sexually assaulting a person under the age of 16 on the basis that the victim is under the age of 18 would not be logical or appropriate.

[84]        Justice Campbell found the sentencing judge erred in failing to consider a relevant aggravating factor and in doing so imposed too low of sentence for the sexual assault of a 14 year old victim. She states:

[49]  I find that the case law and the sentencing framework provided by the Criminal Code support the position that s. 718(2)(a)(ii.1), which deems the abuse of a person under the age of 18 to be an aggravating factor, is to be considered in addition to s. 718.01 and to the minimum term of imprisonment mandated by s. 271(b) when the victim is under the age of 16.

[50]  The only conclusion that can be drawn from the sentencing judge’s stated reasons is that he declined to give effect to and did not consider the victim’s young age as a statutorily aggravating factor independent of the mandatory minimum sentence. In doing so, the judge erred in failing to consider a relevant aggravating factor in sentencing the respondent.

[85]        Justice Campbell did not discuss the impact of the decisions holding the statutory minimum sentence for sexual offences as unconstitutional.

[86]        At the time of the sexual interference and sexual assault, C.B. was 14 and 17 years old. There is some logic to the proposition that the younger the child is, the more vulnerable he or she is to sexual predation. A six-year-old would not have the resolve C.B. demonstrated in December 2017 to terminate her contact with her abuser. Given the divergent binding authorities, I am declining to find the fact C.B. was under 18 years of age at the time of the offence of sexual interference as aggravating under s. 718(2)(a)(ii.1). I come to a different conclusion with respect to the the sexual assault which occurred when C.B. was 17, particularly now as the statutory minimum set out in s. 271(a) has been declared unconstitutional and of no force and effect. Even so, C.B. was almost 18 at the time of the sexual assault, so her age is less aggravating than the fact of her vulnerability given her earlier relationship with J.M.

[87]        The fact C.B. was not prepubescent at any time while the offending was ongoing distinguishes this case from many I have consisdered. In Worthington, the sexual abuse began when the victim was 14 and 15 and persisted for 18 months. I note Justice Saunders’ comment at para. 41, “I recognize that in the case before us for sentencing, the offences started when the step-daughter was in her teen years and so lacks the repellent aspect of abuse of a small child.”

[88]        With respect to Count 4, C.B. was 17-years-old, soon to be 18. J.M. was 35 years older than C.B. In R. v. Jaden, 2018 BCSC 1685, Justice Dewitt-Van Oosten held a 36-year age gap between the offender and victim is a significant difference and is recognized as an aggravating factor.

(g) whether the offender was in a position of trust

[89]        In D.N., Justice Dickson states (at para. 25) where there is a breach of trust in the context of cases involving sexual offences against a child “the primary measure of the offence is the extent to which the offender violated the relationship, the duration of the violation, and the offender’s appreciation of that violation as the abusive behaviour continued.” In my view, a significant aggravating factor in this case is J.M.’s position of trust vis-à-vis C.B. during the offence period in Count 1.

[90]        In all cases I have considered with respect to the sexual interference conviction, the offender was in the position of trust toward the victim. In some cases the offender was a biological parent or a stepfather, in others, he was the grandparent or foster parent or family friend. In contesting evils, sexual abuse of a child who is a blood relative is generally regarded as more serious: J.R.A.C., para. 41; R. v. R.M.D., 2014 BCCA 56 (CanLII). If the abuse involves intercourse, the offender would likely be charged with incest under s.155, which attracts a maxium sentence of 14 years’ imprisonment, and where the victim is under 16 years old, a minimum punishment of five years.

(h) whether the offences were accompanied by any gratuitous violence

[91]        It goes without saying that gratuitous violence is a serious aggravating factor in sexual offences. In Williams, the Court of Appeal held the phrase “gratuitous violence”, as used in R. v. Hajar, 2016 ABCA 222, contemplates acts or threats of actual violence, coercion or other ways of overcoming resistance. For example, in R.A.J. the offender not only sexually assaulted his young daughter for eight years, he also beat her at least twice a week. Some of the beatings precipitated the sexual abuse. In K.L.M. the offender held the 13-year-old victim down and forced intercourse upon her despite her refusals.

[92]        In this case there was no evidence of the sexual activity being accompanied by physical violence or threats. Except in the second incident, there is little evidence of C.B. actively resisting the sexual activity and J.M. overpowering her manifest will. C.B.’s ability to resist was not undermined by alcohol or drugs. The intrusive nature of the sexual activity, including vaginal and anal intercourse, are aggravating because they are a significant invasion of C.B.’s sexual integrity. They did not, however, constitute “gratuitous violence”. As the Court of Appeal in Williams stated at para. 86 “The lack of legal consent renders the sexual activity illegal; it does not transform voluntary sexual activity into gratuitous violence.”

[93]        It bears reiteration that C.B.’s de facto consent when she was under the age of 16, or her passive submission to the sexual activity when she was 17, are not mitigating factors which militate to a lower sentence for these offences. There is simply no gratuitous violence in addition to the sexual violations which may militate toward increasing an otherwise fit sentence. In Akumu, at para. 52, Justice Fisher references Hajar, a majority decision of the Alberta Court of Appeal sitting as a five-member panel. Justice Fisher states:

The court in Hajar also rejected the idea that less harm is done to children by the crime of sexual interference where the child has given de facto consent to the sexual activity. It stressed Parliament's determination that sexual activity between a child under 16 and an adult (and others not within the close-in-age exception) is inherently harmful and therefore prohibited in all circumstances, and held (at para. 94) that “[t]reating de facto consent as if it makes the sexual activity less grave or the offender less responsible undermines the very protection Parliament sought to ensure for children under 16”.

(i) whether the offender pleaded guilty

[94]        As a general rule, a guilty plea is mitigating: see E.S., P.D., and C.K.B. A guilty plea can bring finality to the criminal proceeding, spare judicial resources, and reduce the trauma and inconvenience to the witnesses. It is particularly mitigating in sexual offences where the victim is still a child. The absence of a guilty plea is never aggravating. In C.D.G., Justice Griffin states at para. 32:

The most significant factor which mitigates against the longest range of sentence for these crimes is the fact that once he was reported to the police, C.G.D. turned himself in, confessed to the crimes, and pleaded guilty. This meant that the young victims were spared the trauma of having to testify in court against him and of then being subject to the rigours of cross-examination. Further, young witnesses often have trouble remembering events precisely, especially when the events occurred over years in respect of the sexual assaults. Reasonable doubt as to the reliability of children’s evidence can sometimes arise making conviction uncertain. By pleading guilty, C.G.D. ensured his own conviction and spared the child victims and the community this uncertainty. 

[95]        J.M. did not plead guilty to any of the offences. He has a constitutional right to make full answer and defence and to require the Crown to prove its case beyond a reasonable doubt. To consider a “not guilty plea” as aggravating would in effect punish those who choose to rely on their constitutional right to a trial: R. v. Courson, 2013 BCSC 2163. Moreover, to punish an accused for exercising his constitutional rights risks fostering false confessions. Still, J.M. cannot benefit from the leniency which attaches to a guilty plea as a demonstration of remorse, as reflected in the sentencing authorities.

(j) whether the offender expressed remorse

[96]        As indicated above, an early guilty plea is generally considered a sign of remorse, meaning the offender regrets his wrongdoing. Remorse requires a clear statement, by words and deeds, acknowledging the harm done: R. v. F.H.L., 2018 ONCA 83. It is not self-pity. Genuine remorse can be treated as a positive circumstance that might reduce what would be an otherwise fit sentence for a particular offence. To be considered a true mitigating factor, the remorse must demonstrate concern for the offending conduct and not the offender’s loss. Genuine remorse is relevant because it facilitates rehabilitation.

[97]        Whereas genuine remorse may be a mitigating factor, the absence of remorse is not aggravating: S.S.S., para. 32; R. v. J.C.S., 2017 BCCA 87 (CanLII); Dreger, paras. 47, 50; R. v. E.M.Q., 2015 BCSC 201 (CanLII), at para. 87. Still, its absence of remorse can also disentitle an accused to leniency which might otherwise have been extended.

[98]        Although J.M. has not demonstrated specific remorse for these offences against C.B., neither has he expressed any animus toward C.B. He continues to maintain his innocence, which he is entitled to do. Nevertheless, he did say:

… I don’t know why C.B. accused me of these things, but I hope she is doing okay. What you heard about my previous record, which is really out of the ordinary for me, I kept out of trouble whole life up until then. I guess it was a lot of bad choices on my part. The fact my ex-wife is here I think shows I think she has forgiven me. If there is any rehabilitation I have to do or counselling, I am certainly willing to do that. I hope to stay out of trouble from now on. I guess that is all I have to say.

[99]        In my view, J.M.’s lack of remorse is not as intractable as in D.N. or E.S. or M.P.S. where the offenders showed no insight into their wrongdoing or its impact on the victim.

(k) the offender’s criminal record

[100]     A criminal record can be an aggravating factor which the court can use to increase the severity of the sentence. In the majority of the cases I considered (i.e. R.A.J., M.P.S., S.S.S., P.D., K., M., R.E.M., Melendez, Rosario, Williams), the offenders had no criminal record. In C.K.B., Judge Cohen refused to accept a joint submission as to sentence because of the offender’s lengthy criminal record. He determined a fit sentence was in the range of two to three years where the offender had no criminal record. The sexual abuse included kissing, fondling, oral sex and multiple incidents of vaginal intercourse with his 13-year-old stepdaughter over a one-year period. Judge Cohen ultimately sentenced C.K.B. to four years’ jail because of his “horrendous criminal record.” In Rich and K.S.T. the court did not consider the offender’s criminal record aggravating because it was either minor or dated. In R. v. M.B., 2019 BCPC 2 (CanLII), Judge Harris had difficulty considering the offender’s lack of a criminal record as a justification for reducing a sentence because “a simple fact is, people are expected to be law abiding.” He did accept, however, the lack of criminal record was indicative of the offender’s rehabilitative prospects.

[101]     Convictions for other criminal activity can only be aggravating if the sentence on those matters had been imposed before the predicate offence occurring. In R. v. Pete, 2019 BCCA 244 (CanLII), the BC Court of Appeal held a sentencing judge should not treat post-offence convictions as prior convictions or an aggravating factor requiring a harsher sentence. However, the fact the offender has committed subsequent offences may be relevant to his character, the prospects for rehabilitation and his risk of reoffending.

[102]     In this case J.M. is a first offender for the purposes of sentencing his conviction for sexual interference charged in Count 1, and a subsequent offender for sexual assault charged in Count 4. In November 2017, at the time of the sexual assault, J.M. was still on probation for his offences against T.M. The Crown asserts J.M.’s criminal record is highly aggravating because it is recent and demonstrates a propensity for violence. The Crown further argues as aggravating the fact the incidents giving rise to the December 21, 2016, convictions had a sexual context. The Crown put into evidence a transcript of the December 21, 2016, sentencing hearing: Exhibit 5. When reading in the circumstances of the offences to the court at that hearing, the Crown said J.M. was upset because his wife refused to have sex with him the previous night. J.M.’s then defence counsel did not argue otherwise.

[103]     J.M. is before the court for sentencing for his offences against C.B., not for his offences against T.M. I accept his record is aggravating with respect to the November 2017 offence of sexual assault, although I do not agree it is as aggravating as the Crown submits. The Crown did not charge J.M. with a sexual offence as a result of the June 5, 2016, incidents. I am not prepared to recast the December 21, 2016, convictions as sexual offences for the purpose of this sentencing hearing. The nature and circumstances of those offences are significantly different than the one before the court. Moreover, the rehabilitative sentence the Crown sought on December 21, 2016, indicates J.M.’s conduct fell at the lower end of the seriousness spectrum.

[104]     What I glean from Exhibit 5 is that by June 2016, J.M. and T.M.’s marriage was disintegrating and that J.M., as he acknowledges, made very poor decisions for which he was genuinely remorseful.

(l) the offender’s age and health

[105]     As can be gleaned from a number of the authorities presented to the court in this sentencing hearing, the offender’s advanced age and attendant infirmities be a mitigating factor: M.P.S., para. 12, S.S.S., para. 75, citing R. v. Swope, 2015 BCCA 167; and K., para. 37. Unlike the offenders in M.P.S. and S.S.S., K., Melendez and Williams, J.M. is middle age and has not argued he suffers from any serious health concerns, physical, mental or emotional.

(m) whether the offender was socially disadvantaged

[106]     J.M. is not Indigenous so the principles espoused in R. v. Gladue, 1999 CanLII 679 (SCC), and R. v. Ipeelee, 2012 SCC 13, are not engaged. Nevertheless, the court is still obligated to recognize an offender’s disadvantaged background in the sentencing process. An offender whose childhood is marked by violence, addictions, abandonment, neglect, and family dysfunction are often left with a poorly functioning moral compass. An offender cannot always overcome the crippling effects of early deprivation: R. v. R.B.M., 1990 CanLII 5416 (BCCA), paras. 16 - 18 and 23. Although there is some indication in the presentence reports that J.M. may not have had the benefit of a perfect childhood, there is no evidence he experienced severe suffering or privation.

(n) whether the offender presents an ongoing risk to the community

[107]     A pressing concern for a sentencing judge is the offender’s likelihood of recidivism. That is often gauged by the offender’s criminal record. Notwithstanding J.M.’s criminal antecedents, Dr. Kerr considers him a low risk to reoffend. J.M. is not mentally ill or an addict, nor has he a serious personality disorder. Although he continues to profess his innocence, J.M. has indicated a willingness to participate in a rehabilitative process. I accept J.M. presents a low risk to the community and find it a mitigating factor in sentencing.

(o) the offender’s family and community support

[108]     J.M. has positive relationships and an admirable work history. It appears he does have community supports in place and was willing to take treatment. The Crown has suggested that T.M.’s support of her ex-husband is motivated at least in part by the ongoing financial support he provides to her and their children. J.M. and T.M. were married for 24 years and raised four children. I do not presume the dramatic end to their marriage eradicated all concern or affection they may have for each other.

[109]     Family or community support which encourages an offender to blame the victim is not mitigating because it may negatively impact the offender’s rehabilitation: see C.K.B., para. 26; K.S.T., at para. 111. Although I have concerns as to T.M.’s penchant for blaming C.B., I accept J.M.’s pro-social lifestyle, familial and community support, is mitigating, in that it will ultimately facilitate his rehabilitation.

(p) the offender’s bail conditions

[110]     J.M. was released on a Promise to Appear and an Undertaking to a Peace Officer on January 16, 2018. The most onerous condition prohibited J.M. from communicating directly or indirectly with C.B. As C.B. no longer lived in the area I cannot see how it unduly restricted J.M.’s mobility or impinged on his lifestyle. So, unlike J.M. Melendez, J.M. was not subject to years of onerous bail conditions which kept him from his home and family. J.M.’s situation is not unlike that of the offender in M.S.P, wherein Justice Dickson found (at para. 33) that given M.S.P.’s relatively undemanding bail conditions, his compliance with those conditions was not a significant mitigating factor.

(q) the impact on the victim

[111]     Section 718.2(iii.1) provides that it is aggravating if an offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. A sentencing judge can acknowledge that sexual offences committed against children will likely cause psychological harm: R. v. Rosenthal, 2015 YKCA 6 (CanLII), 2015 YKCA, at para. 6, citing R. v. McDonnell, 1997 CanLII 389 (SCC).

[112]     C.B. presents as remarkably resilient in the face of the adversity she suffered in her young life. Still, I recognize the offences contributed to her feelings of unworthiness. I conclude C.B. has likely suffered the type of emotional distress that is predictable and inevitable when sexual offences are committed against an adolescent by a far older caregiver.

Collateral Consequences

[113]     As set out in K.S.T. (at para. 98) the sentencing judge must also consider any collateral consequences arising from commission of an offence, the conviction for an offence, or the sentence imposed for an offence that impacts the offender: Pham, and R. v. Suter, 2018 SCC 34 (CanLII). In this case the defence has not argued any collateral consequence which the court ought to consider when crafting a proportionate sentence. I do acknowledge, however, that if J.M. is incarcerated for a lengthy period, he will not be able to continue to support his family as he has done for most of his adult life.

Analysis

[114]     J.M. is before me for sentencing upon being convicted after trial for two sexual offences against C.B. These offences occurred both during and after J.M. was her foster parent. The sexual abuse started when C.B. was about 14 years old and involved five incidents which occurred within an unspecified period, which I have determined to be under six months. A sixth incident of sexual assault occurred approximately 28 months after C.B. left J.M. and T.M.’s care, when C.B. was 17. I have considered the circumstances of the offence and those personal to J.M., whether they be aggravating or mitigating or neutral, as well as the collateral consequences of a custodial sentence. I am mindful of the purposes and principles of sentencing and take guidance from the relevant case authorities. In considering J.M.’s culpability in these offences, I have not lost sight of C.B., now a young woman, and the impact of these offences on her sense of self-worth and emotional wellbeing. I find a jail sentence of five years is a fit and proper sentence for Count 1, and two years for Count 4.

Consecutively or Concurrent

[115]     In R. v. H.C.T.T., 2018 BCSC 2341, Justice Harvey considered how the convictions for the four separate offences ought to be served. He referenced Justice G.C. Weatherill’s comments in R. v. R.J.Y., 2016 BCSC 2151:

[30]      The test for the imposition of a consecutive or a concurrent sentence is "whether the acts constituting the offence were part of a linked series of acts within a single endeavour": R. v. G.P.W., [1998] B.C.J. No. 838 at para. 35.

[31]      I accept that the accused’s acts comprised a linked series of acts within a single endeavour during A.Y.'s childhood; namely, the ongoing sexual abuse and exploitation of her for his sexual pleasure.

Justice Harvey concluded the acts constituting the offences for which H.C.T.T. was being sentenced were part of a linked series of acts within a singular endeavour, namely the ongoing sexual abuse and exploitation of his daughter.

[116]     The case before me is very different than H.C.T.T. I do not see the offences in Count 1 and 4 linked, which is why I acquitted J.M. of the charge of sexual exploitation at trial. I estimate the offences of sexual interference and sexual assault were separated by over two years during which time C.B. and J.M. had minimal contact. In my view, the offences were not part of a linked series of acts within a single endeavour and therefore ought to be served consecutively. This would mean a global sentence of seven years’ incarceration. Applying the totality principle, I am reducing the total sentence by six months for each offence for a global jail sentence of six years.

Ancillary Orders

[117]     For the most part I find the ancillary orders sought by the Crown appropriate. The Crown has sought an order under s. 161 of the Code to prohibit certain communication and conduct with children after J.M. is released. This provision applies because he has been convicted of an offence under s. 151 of the Code involving a person under the age of 16 years. The circumstances surrounding J.M.’s misconduct militate toward some restrictions on his post-release conduct. Nevertheless, I find the term and conditions sought by the Crown in the s. 161 order overbroad.

Disposition:

[118]     J.M., for the offence of sexual interference charged in Count 1 of Information [omitted for publication], I sentence you to a term of imprisonment of four and one-half years to be served consecutively to any other sentence I impose today on Count 4.

[119]     For the offence of sexual assault charged in Count 4 of Information [omitted for publication], I sentence you to a term of imprisonment of 18 months to be served consecutive to the sentence I imposed on Count 1.

[120]     The global jail sentence for Counts 1 and 4 is six years.

[121]     Pursuant to section 487.051 of the Criminal Code, I make an order authorizing the taking of the number of samples of bodily substances that are reasonably required for the purpose of a forensic DNA analysis. These will be taken from you while you are in custody.

[122]     Pursuant to section 109 of the Criminal Code, I prohibit you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life.

[123]     Pursuant to section 743.21 (1) of the Criminal Code, you are prohibited from communicating directly or indirectly with C.B. during the custodial period of your sentence.

[124]     Pursuant to section 490.012 of the Criminal Code, you are required to comply with the Sex Offender Information Registration Act for life.

[125]     Pursuant to s. 161 of the Criminal Code, after your release from custody, and for a period of five years, I order that you are prohibited from:

a.            going to any dwelling-house in which C.B. ordinarily resides; or

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.

[126]     Pursuant to s. 743.2 of the Criminal Code, I order that a copy of these Reasons for Sentence be forwarded to the Correctional Service of Canada.

[127]     There is no Victim of Crime Surcharge associated with these two convictions as they were committed prior to July 22, 2019.

 

 

___________________________

The Honourable Judge J.T. Doulis

Provincial Court of British Columbia


APPENDIX

BRIEF SURVEY OF SENTENCING DECISIONS ON CHILD SEXUAL OFFENCE CASES

LEXICON

General

Δ = Offender

π = Victim

HSO=Historic Sex Offence

 

OD = Offence Date

This is the year(s) of the offending (in some cases an approximation)

DIS = Disposition

T = Trial

GP = Guilty Plea

GH = Gardiner Hearing

Age #1

This is the age of the victim(s) when the offending began

Age #2

This is the age of the victim(s) when the offending ended

DUR = Duration

duration of the period of offending

Y- Year(s)

M = Months

W= Weeks

ICD= Incident(s)

CR = Offender’s Criminal Record

N = No criminal record

Y = Yes, criminal record

Y- D = Dated Criminal record

Y-M = minimal Criminal Record

PSO = conviction for prior sex offence(s)

REL = Offender’s relationship to the victim

BP = Biological Parent

AP = Adoptive Parent

SP = Surrogate Parent

GP = Grandparent

SP = Step Parent

 

SGP = Surrogate Grand Parent

FP=Foster Parent

RV = Relative

T = Teacher

IP = Intimate Partner

 

C = Coach

RL = Religious Leader

ACQ = Acquaintance

SM = Social Media Date

SR = Stranger

SEVERITY

 

HM = Offences occurred in the victim’s home

VT = Voyeurism

KG = Kissing

FKG = French Kissing

SXT = Sexual touching

MAS= Masturbation

 

OS = Oral Sex (fellatio or cunnilingus)

DP = Digital Penetration

UP = Unprotected intercourse

VI = Vaginal Intercourse

AI = Anal Intercourse

 

UPRN = used pornography to groom the victim

MPRN = Made pornographic images of the victim

CP = used coerced or extortion or psychological pressure

GR = grooming

GV = Gratuitous Violence

SNT = Sentence

And Duration

Y = Year(s)

M = Month(s)

D = Day(s)

CSO = Conditional Sentence

P = Probation

 

A = Auxillary orders

 

 

 

 

COUNT 1: SEXUAL INTERFERENCE

The first table consists of all BC cases, save P.D. (which is from Ontario). The citations are with respect to sexual offences against one or more victims by an offender in a position of trust. These offences include sexual interference, sexual assault, incest, sexual exploitation, and some historical offences, such as rape and indecent assault. For the most part the offences occurred in the victim’s home and involved multiple incidents. The offences generally had a significant impact on the victim. The cases are organized by the age of the victim when the abuse began.

AUTHORITIES

OD

DIS

AGE

#1

AGE

#2

DUR

CR

REL

SEVERITY

STN

R v O.M., 2009 BCCA 287;

cited in C.K.B; K.; S.S.S.;

 

?

GP

2-3

15

13 Y

Y

BP

PSO

SXT; VI; VI; FP ;HM; Δ=sexually assaulted as a child

5 Y

R. v R.I.L, 2006 BCSC 1603;

cited in C.K.B.

1968-

1982

 

T

3

17

14 Y

N

SP

HSO; Δ = age 65 at SNT; SXT & VI; HM;

4 Y

R v K.V.E., 2013 BCCA 521;

cited in M.P.S.; S.S.S.; Vautour

1974-

1990

1996 -

2002

 

GP

 

 

4

8

12

7

18

16

18

12

16 Y

 8 Y

 6 Y

 5 Y

 

?

BP

GP

4 πs; SXT, OS, VI, CP, GR; Δ = age 78 at SNT, Δ was sexually assaulted as a child; considered the πs his harem

 

10 Y

R v R.J.Y., 2018 BCCA 30, cited in H.C.T.T.;

1990-

2002

 

T

4

16

Y

?

BP

SXT; OS, DP, VI; HM;

 

R. v. R.S.H., 2005 BCSC 927;

R. v. Hall, 2005 BCCA 566; citied in C.G.D.; C.K.B.

2002-

2004

T

4-5

6-7

2 Y

N

FF

SGF

SXT π over her clothes; HM;

Δ = age 62 at SNT ; Δ blamed wife for not having sex with him as frequently as he wanted

22 M

2 Y P

A

R v. C.G.D., 2009 BCSC 404;

cited in Rosario;

 

2002-

2008

2008

 

GP

5

 

12

11

 

12

5 Y

 

1 ICD

 

SP

 

FF

2 πs; SXT; OS; several 100 if not 1000s ICD; no VI; HM;

2nd π = luring no SXT

3 Y

90 D

A

 

R v Vautour, 2016 BCCA 497, cited in K.S.T.;

1989

1993

GP

5

9-10

4.5 Y

N

SFP

HSO; OS, DP, MAS; 100s ICD; HM; Δ = pedophilic disorder

 

30 M

R v G.J.S., 2014 BCSC 1105, cited in K.;

1993 -

1999

T

5

10

6 Y

N

SP

HSO; SXT= daily; VI=3 ICD, CP; GR; HM; Δ = low risk to reoffend;

3.5 Y

R. v. Rennie, 2013 BCSC 909;

cited in Melendez

2010-

2011

T

5

6

5

6

1 ICD

1 OCD

Y

SP

2 πs : SXT; FKG; HM

Δ = no prior CR for sex offences; Δ= Mental health and addictions;

22 M

1 Y P

A

R v S.L.D., 2017 BCPC 349, cited in M.B.

2012-

2016

 

GP

6

10

4 Y

N

BP

KG; SXT, OS; UPRN;GR;CP; HM; No VI; Δ = sexually abused when a child; Δ = high risk of recidivism

 

5 Y

A

R. v. Safaee, 2009 BCCA 36,

cited in Melendez

 2007 

GP

6

6

2 ICD

N

O

SXT, UPRN 2 ICD on 1 D

Δ= age 51 daycare worker

 

18 M

2 Y P

A

R v J.D.M., 2001 BCSC 563, cited in C.G.D.

1993-

1999

 

T

6

11

6 Y

Y-D

SP

SXT, DP; HM; Δ= age 49 at OF; was sexual dysfunctal and held deviant sexual fantasies

2 Y

– 1 D

2 Y P

A

R. v. R.E.L., 2010 BCCA 493; cited in C.K.B.; Melendez; K.S.T.; S.S.S.

 

2000-

2006?

GP

6

12

6 Y

N

SP

SXT, DP, OS, attempted VI; HM

5 Y

A

R. v. P.D.,1999 CanLII 3777; cited in R.E.L., R. v. L.F.W., 2000 SCC 6

 

1991-

1997

 

GP

6

12

5 Y

N

BP

SXT; OS, VI; HM; CSO refused

2 Y

 -1 D

3 Y P

 

R. v. S.S.S., 2018 BCSC 2470, cited by the Crown

2002-

2012

 

T

6

16

10 Y

N

GP

SXT, DP, OS, VI, CP, GR, HM;

Δ= age 80, does not speak English, health issues

 

7 Y

A

R. v. J.G.B, 2008 BCSC 1069, cited in C.G.D.

 

?

T

6

15

9 Y

N

AP

KG, SXT, OS, VI, HM

 

4 Y

A

R. v. D.A.C.1998 CanLII 14971 (BCCA), cited in D.N.; C.K.B, R.E.M., O.M.

 

1975-

1982

1985

T

6

 

17

13

 

17

7 Y

N

SP

R

HSO ; SXT, OS, MAS, VI; HR

2nd π attempted but failed VI, HM;

6 M concurrent SNT for 2nd π

2 Y

-1 D

6 M

R. v. D.N., 2018 BCCA 190, cited by the Crown

1982

1989-

1993

 

T

6-7

14?

8 Y

Y

SP

SXT; DP; OS, VY, GR; HM; Δ fled to Europe after first offence; co-opted π’s mother

8 Y

R v. G.F., 2018 BCCA 339,

cited in K.S.T.

1997

2008

2006

T

6

 

14

15

 

14

9 Y

 

1 Y

Y

PSO

SGP

 

FF

2 πs; 1st π =SXT, OS, attempted AI; 2nd π = SXT, AI; multiple ICDs, bodily harm, MPRN & distributing; Δ = Indigenous, age 63; bad health, Gladue factors

 

8 Y

R. v. J.R.L., 2006 BCPC 472; cited in C.K.B.

2006

GP

7

7

1 ICD

Y

PSO

SP

DP; Δ = risk to reoffend

PSO against Δ’s daughter; Δ abuses drugs & alcohol

2 Y

+3 P

A

 

R v R.A.J., 2010 BCCA 304, cited by the Crown

1999

2007

 

T

7

17

10 Y

N

BP

SXT, DP, OS,MAS, VI, AI, GV

8 Y

A

R v K., 2016 BCSC 1637, cited by the Defence

2000

2005

 

T

7

11-12

4 Y

N

SP

SXT, DP, VI= 1 ICD; HM; HSO; Δ = age 79 at SNT in poor health

30 M

A

R v Birch, 2003 BCSC 760

cited in C.G.D.

?

T

7

10

3 Y

N

FF

SXT, attempt KG

Δ = low risk to reoffend

18 M CSO

24 M P

A

R v Wesley2014 BCCA 321;

cited in K.S.T.; S.S.S.

 

2011

GP

7-8

7-8

4 M

Y

FF

SXT – 3 ICD; Δ = age 25 on OD & 27 at SNT; indigenous Gladue factors – co-oped victim’s aunt; no CR for PSO

 

5 Y

R v Swope, 2015 BCCA 167, cited in M.P.S., S.S.S.

 

1980

1981

 

T

6-8

6-8

1 Y

 

T

HSO; SXT 6 πs – students

Multiple ICD, not fleeting;

Δ = 78 and in poor health

 

39 M

R v K.J.M., 2016 BCPC 306, cited by the Crown

2004

2013

 

GP

7

16

9 Y

 

SP

SXT; OR; VI;CP; GV; GR; π= pregnant; Δ used religion to CP π and her mother

 

8 Y

A

R v. G.S.M., 2011 BCPC 167;

cited in Melendez .

2005

2007

 

GP

7

9

9

11

18 M

3 ICD

N

SGP

2 πs; SXT, OR, GR; UPRN; GR;

50 ICD; Δ = 67, no addictions

 

2.5 Y

A

R v T.P.C.2000 BCSC 742

1973-1980

T

7

12

6 Y

N

SP

HSO; SXT; DP; OS;MAS, attempted VI;HM; Δ = age 34-40 on OD, 61 at SNT; CSO ref’d

 

18 M

$5000 Fine

R. v. Goff, 2009 BCSC 1621;

cited in Melendez

 

2005

2008

GP

 

8

9/10

10-11

11

2-3 Y

2-3 Y

N

FF

2 πs: 8 ICD 1st π SXT; 2nd π SXT, DP, MAS; Δ = 41; joint submission

30 M

A

R v M.B., 2019 BCPC 2

2008

2016

 

T

8

15

8-9 Y

N

SP

SXT, OS, MAS, GR, UPRN, extreme GV, threats;

7 Y

A

R v R.E.M., 2005 BCSC 698, cited by the Defence

1973

1981

 

T

8

16

8 Y

N

SP

HSO; π gave birth to Δ’s child; over 10 incidents of SXT; 6 ICD of VI, HM

 

18 M

A

R v Melendez, 2016 BCPC 91, cited by the Defence

2006-

2007

 

T

8

8

4 M

N

FP

FKG, SXT, DP, VI; Δ= age 70 at SNT, had 4 Y of onerous bail conditions

 

2 Y-

1 D

A

R v E.T.K., 2016 BCPC 346, cited by the Crown

2008-

2012

 

T

8-9

14

5- 6 Y

 

SP

KG, OS, VI, CP, Daily ICD, VI = 3 x per week

8 Y

R v Chaput, 1996 CanLII 8327 (BCCA), cited in M.; C.G.D.; C.K.B. ,Melendez, D.N.

1960

1966

T

8

12

4-6 Y

 

SP

HSO; SXT, VI, CP; Δ = threated to molest π’s sister; π injured herself to stop pending sex assault

 

6 Y

R v R.M.D., 2014 BCCA 56

cited in M.P.S.

 

2003

2009

T

13

8-9

14

12

6-8 M

5 Y

Y

BP

SP

BP to π = KG, MAS, VI 8 or 9 ICD

SP to π = SXT, MAS, OS, Attempted VI; Δ = sexually abused as a child; Δ = moderate to high risk to reoffend

 

8 Y

4 + 4

R v D.E.H., 1999 BCCA 526, cited in R.A.J., E.S.

 

-1997

T

9

16

7 Y

 

BP

VI; Δ = high risk to reoffend

6 Y

R v F.E.H., 2015 BCSC 175;

cited in Melendez

2005

2006

 

T

8

8

9

8

4 ICD

3 ICD

N

SP

FF

2 π s; SXT; DP; Δ = poor prospects for rehabilitation

20 M

18 M

A

 

R. v. R.R.B., 2013 BCCA 224

 

 

 

9

15

5 Y

N

 

SXT, OS

Δ = age 36-43 at OD

 

 

R v T.J.B., 2015 BCSC 855

cited in K.S.T.

 

2011-

2012

T

9-10

10-11

1 Y

N

FF

KSG; SXT; MAS; simulated intercourse; GR; CP; Δ = age 20-21 at OD; moderate- high risk to reoffend

 

4.5 Y

A

R v D.H., 2018 BCPC 203,

cited in M.B.

 

2012-

2017

GP

10

14

4 Y

N

FP

SXT, MAS, OS, AI (10 ICD) countless ICD of offending; Δ = age 54 at SNT

 

4 Y

A

R v Rosario, 2018 BCSC 2483

2010-

2015

T

10

15

5 Y

N

FF

SXT; VI, MAS, shaving pubic hair; GV; 30 ICD; Δ = blamed π - Δ = moderate- risk to reoffend

 

6 Y

A

R v R.J.G., 2007 BCCA 631,

cited in S.S.S., M.P.S.

1971 

1981

 

1971- 1975

 

GP

10

13

10

 

11

18

19

14

 

15

8 Y

6 Y

4 Y

 

4 Y

No

BP

 

 

 

FF

HSO; VI’ πs = 3 daughters and a friend and babysitter, who became pregnant; Δ = age 72 and in poor health

12 Y

R v M. , 2000 BCSC 683, cited by the Defence

1992-

1999

T

9-10

10

17

17

7-8 Y

7-8 Y

N

SP

2 πs = twins

1π = SXT; 2π =DP& VI, Gr;

SNT concurrent

 

 

9 M

2 Y

-1 D

3 Y P

R v T.A.D. (1995)68 B.C.A.C. 236 cited in R.A.J., S.S.S.

 

1980-

1989

T

10

19

9 Y

Y-D

SP

HSO; Various sexual offences, including VI

6 Y

R v M.P.S., 2016 BCSC 1175

R v M.P.S., 2017 BCCA 397, cited by the Crown

2004-

2011

T

10

13

 

17

15

6 Y

2 ICD

N

SGP

Older π = SXT; OS, partial VI; CP;

Younger π = DP, OS; SNT consecutive 7 y+ 2 Y – 1 Y for totality; Δ = age 74 + poor health

 

8 Y

A

R v W.E.G., 2006 BCPC 151; cited in C.K.B.

 

1994

2001

T

10

13

6 Y

N

SP

KG, SXT; VI; Δ = good prospect for rehabilitation

30 M

R v R.J.B., 2016 BCCA 428;

cited in K.S.T.; M.P.S..

1998

2002

T

10

14

4 Y

 

Y

BP

FF

2 πs;1st π - Daughter mentally disabled; VI not proven; 2nd π SXT – 1 ICD SNT served consecutively

4 Y

6 M

A

R. v. T.D.F., 2016 BCSC 984;

cited in M.P.S.

2008

2013

 

T

10

15

5 Y

Y

SP

SXT, UPRN, GR

 

2.5 Y

A

R. v. G.E.B., 2001 BCCA 236, cited in R.A.J.

1982 1998

 

T

10

16

6 Y

?

BP

OS, VI, AI, CP; over 50 ICD

7 Y

+

R v. J.R.A.C., 2014 BCSC 2163

2006

2008

T

10/11

11

13-14

11?

2 Y

3 ICD

Y-D

SP

1st π = SXT, OS, VI

2nd π = SXT 3 ICD

Δ = low risk to reoffend

 

4.5 Y

1 Y.

R v. H.C.T.T., 2018 BCSC 2341, cited by the Crown

?

T

11

15

4 Y

Y-D

BP

SXT; OS, UP VI; MAS; UPRN;

 Δ = poor health & low cognition

 

7.5 Y

R v S.T.H., 2018 BCPC 98

2014-

2017

GP

11

13

2 Y

N

BP

SXT, OS, UP VI; Δ = age 40 at SNT; Δ = unstable and tumultuous upbringing

 

7 Y

R. v. G.R.H., 2004 BCPC 286

1996

1998

GP

11

12-13

1 Y

N

FP

HSO; Frequent VI; HM; GP after PI; offences continued after a restraining order; Δ= age 34; low - moderate risk to reoffend

 

5 Y

A

R v D.L.W., 2014 BCSC 43;

R v D.L.W., 2015 BCCA 169;

cited in S.S.S. and K.S.T.

2000

2010

T

11-12

21

10 Y

10 Y

N

SP

2 πs; OS, VI, AI, bestiality, CP, GR, GV, MPRN; HM; Δ= age 55 at SNT; Δ= “evil incarnate”

 

16 Y

7 +7 +2

A

R. v. Pappas, 2005 BCSC 1431; cited in C.K.B

 

1996

2003

 

T

11-12

17

5-6

Y-M

SP

SXT, OS, VI; CP, threats, drugs; HM; Δ= age 41 at SNT; not a serious risk to reoffend

 

5 Y

A

R v K.S.T., 2019 BCPC 112, cited by the Crown

2014-2016

T

- 12

 13

Over a year

Y-D

SGP

SXT; attempted VI or AI; MAS, ; HM; OS; Δ= Indigenous offender – strong Gladue factors; age 58 at SNT

 

4.5 Y

A

R v E.S., 2017 BCCA 354, cited by the Crown

?

GP

12

16-17

4-5 Y

?

SP

Δ= charged under ss. 153 & 163.1(2); forced UP VI; MPRN; CP; HM; π = pregnant, abortion,; pressure; Δ= low-moderate risk to reoffend

 

6 Y

18 M

R v S.S.E., 2012 BCSC 1223, cited in G.J.S., W.J.P.

1998-

2008

T

12

16

5 Y

N

SP

DP, OS, VI, AI, CP; HM;

Δ= low-moderate risk to reoffend

 

6.5 Y

A

R. v. J.K., 2015 BCPC 246

1989 -1991

GP

12

13-14

2 Y?

N

RL

SXT; No VI, No GV;

 Δ= age 29 at OD; no pedophilia

 

1 Y

2 Y P

A

R v W.J.P., 2016 BCPC 19

2014

GP

11

12

+ M

Y-D

FF

UP VI; π = cognitively impaired (age 7); π = pregnant;

Δ = low functioning; moderate to high risk to reoffend; indigenous offender; age 66 at SNT

 

6 Y

A

 

R. v. Stewart, 2016 BCSC 2577

1994

1998

GP

12/13

16

4 Y

Y

PSO

FF

HSO; OS, MAS, AI; GR, HM;

Δ = was a father figure; π also sold drugs and committed B & E for Δ; Δ= low risk to reoffend

 

2 Y–

1 Day

18 M P

R v C.K.B., 2012 BCPC 482, cited by the Defence

2011-

2012

GP

13

15

2 Y

Y

SP

KG, SXT; OS; UP VI; HM;

Δ= age 32 at SNT; serious CR; Court rejected a joint submission for 2 Y + P

 

4 Y

A

 

R. v. W.M., 2010 BCCA 370; cited in K.S.T.

-2008

GP

13

11

15

12

2 Y

Y-D

SP

Older π = VI 5 ICD; GR, CP, prior π of sex assault; younger π: SXT; HM; Δ = serious health issues; sought sex offence treatment

 

42 M

18 M

A

 

R v D.E.L., 2006 BCPC 79, cited in C.G.D.; C.K.B.

2001

T

13

13-14

6 M

Y

SP

SXT, MAS, DP, VI, CP; HM; Δ = age 35 at SNT; Lengthy CR; drug addiction; Δ = moderate risk to reoffend; abused drug & alcohol

 

4 Y

A

R v. C.C.P., 2016 BCSC 520;

cited in H.C.T.T.

2014

GP

13

13

4 M

Y

BP

DP, OS, UP VI, forced painful AI,CP; 5 ICD; Δ = provided π with alcohol; high risk to reoffend; Δ =41 at SNT

 

7 Y

 

R v D.R.W., 2011 BCPC 462;

cited in C.K.B.

 

2006

2007

GP

GH

13

15

20 M

Y-M

SP

SXT, OS, DP, MAS, UPRN, CP, GR, HM; Δ = age 51 at SNT; not significant risk to reoffend

 

4 Y

A

R. v. D.C.E., 2012 BCPC 491

?

GP

14

16

2-4 Y

Y-D

SP

SXT; forced AI;OS, CP; 9 ICD; HM; Δ= age 36 at SNT; moderate to high risk to reoffend

 

4 Y

A

 

R. v. R.O.A., 2007 BCSC 525; cited by C.K.B.

 

2004

2005

GP

14

15

18 M

N

SP

OS, UP VI, π=pregnant; VI every second day; HM; Δ = achieved sobriety after being charged

 

3 Y

A

R v. Rich, 2014 BCCA 24, cited by the Defence

 

1998-2000

T

14

16

3 Y

Y-M

BP

HSO; SXT, DP, 80 ICD; Δ = 50 at SNT

2.5 Y

R v Worthington, 2012 BCCA 454; cited in K, K.S.T.

 

2007

2008

GP

GH

14

15

18 M

N

BFP

KG, SXT, OS, MAS, DP, VI, GR sexualization of REL, UPRN; Δ = age 51 at SNT, age 47-8 at OD;

 

 

4 Y

R v Thurston, 2016 BCSC 1406

2011

T

15

15

7 M

Y-D

F

DP, VI, CP; Δ = age 65 at SNT with health issues; Δ= low risk to reoffend

,

30 M

A

R. v. G.R.L., 2016 BCSC 293 

2011

T

-16

-16

1 ICD

Y-D

FF

OS, VI, AI, Δ = gave π liquor; Δ = 43 at time of the offence; π = teenage friend of Δ’s daughter

Δ = intoxicated to blackout

 

3 Y

COUNT 4: SEXUAL ASSAULT

Sexual Assault of a person under the age of 18, where there was no breach of trust

AUTHORITIES

OD

DIS

AGE

#1

AGE

#2

DUR

CR

REL

SEVERITY

STN

R. v. Heward, 2001 BCCA 365

 

-2000

GP

13

 

6 W

Y

FF

VI; 25 ICD; de facto consent; Δ= age 38 at OD; s. 161 order refused

 

18 M

3 Y P

R. v Akumu & Boima, 2017 BCSC 1051, cited in K.S.T.;

R. v Akumu, 2017 BCSC 1502

2014

T

14

14

1 ICD per Δ

N

SM

SR

1st Δ= Akumu 36 Y old, OS, gave π drugs and alcohol; invited over 2nd Δ Boima age 33 SR stranger to have UP VI with π who was grossly intoxicated; Δ Akuma, deaf; Δ Boima = disabled by torture as a teenager in Africa

 

1st Δ = 2 Y

-1 D

A

2nd Δ = 16 M

A

R. v Angel, 2018 BCSC 1751

2016

T

14

14

1 ICD

N

SM

OS, AI; Δ = 51 at OD; π = teenager, willing participant Δ = low risk to reoffend;

 

1 Y

18 P

R v Williams, 2019 BCCA 295

2015-2017

2016

GP

14

 

15

16

 

15

 

2 Y

 

8 ICD

N

SM

2 πs Multiple ICD of VI with 1st π, CP; 8 UP ICSs with 2nd π ;who became pregnant, CP;; Δ = 23 & 25 at OD, and 27 at SNT; Δ = Mental illness; No GV

 

2 Y- 6 M

3 Y- 6 M

-

R v Pouce Coupe, 2014 BCCA 255, cited in G.M.

2010?

T

15

15

1 ICD

N

ACQ

Violent sex assault; forced VI;

Δ = 19 year old indigenous offender

 

3 Y

A

 

R v Jaden, 2018 BCSC 1685

cited in G.M.; K.S.T.

2016

GP

15

15

1 ICD

No

FF

UP VI, injuries, Δ = 53, had keys to the π’s family home

 

3 Y

 

 R. v. Clowry2018 BCSC 2032 (CanLII), cited in K.S.T.

2015

T

15

15

3 ICD

Y-D

ACQ

VSI 3 ICD π= troubled teen but willing participant ; Δ = age 39 on OD

 

 

28 M

R v Scofield, 2019 BCCA 3

 

2013

GP

15

15

15

15

4-5 ICD

2 ICD

N

SM

OS; UP VI; 4- 5 ICD with 1st π; 2 ICD with 2nd π ; πs willing participants Δ = age 22 at OD, cognitively impaired, moderate to low risk to offend; No CP, GV

1 Y CSO

Sexual assault of an intimate partner where there is no breach of trust

R. v. G.M., 2015 BCCA 165, cited by the Crown;

2012

T

AD

AD

1 ICD

N

IP

Δ = was 41 and π’s intimate partner; π = adult; violent forced AI;BCCA said range is 2 – 6 Y.

 

18 M