IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT: On July 19, 2018, C.G.J. was found guilty, after a three day trial, for the offence of sexual interference, contrary to s. 151 of the Criminal Code. At the time of the offence on April 27, 2017, he was 18 years of age and the victim L.J. (the "Complainant") was 13 years of age. They are both Indigenous persons but are not related.

[2]           The Crown proceeded by way of summary conviction. C.G.J. (the "Accused") is now before this court for sentencing. Since Crown proceeded summarily, under s 151(b), the convicted Accused is therefore liable upon sentencing to a term of imprisonment of not more than two years less a day, and to a mandatory minimum sentence of imprisonment for a term of 90 days.

[3]           The Crown submits that a fit sentence in all the circumstances of this matter would be imprisonment for a period of six to eight months, followed by two years of probation. The Crown is also seeking a number of ancillary orders.

[4]           The Accused has no prior criminal record and is now a first‑time offender. Through his legal counsel, the Accused challenges the constitutionality of the mandatory minimum sentence of 90 days' imprisonment provided for in s. 151(b) of the Criminal Code ( the "MMS"), as being a violation of the Accused's s. 12 Charter right of not being subjected to cruel and unusual treatment or punishment.

[5]           The British Columbia Court of Appeal in R. v. Scofield, 2019 BCCA 3, has recently held that the mandatory minimum of a one‑year term of imprisonment under s. 151(a) (where Crown has proceeded by way of indictment) violates s. 12 of the Charter and cannot not be saved under s. 1 of the Charter.

[6]           The Accused submits that as part of the individualized sentencing process this court should be considering a suspended sentence pursuant to s. 731(1)(a) of the Criminal Code, with a lengthy period of probation. Alternatively, if imprisonment is necessary, it should be served in the community under a conditional sentence order pursuant to s. 742.1, then followed by a significant period of probation.

[7]           The existence of the s. 151(b) MMS statutorily prevents this court from imposing either of those sentences, until this court concludes that the MMS violates s. 12 of the Charter and cannot be saved under s. 1. If this court comes to that conclusion, it can then apply the available remedy within its jurisdiction. That available remedy is to decline to impose the MMS in this case and then to proceed to impose the fit sentence on the Accused, all as contemplated by R. v. Lloyd, 2016 SCC 13 (CanLII), [2016] 1 S.C.R. 130, and specifically at paragraph 19.

[8]           Crown and Defence agree there are usually two aspects to a s. 12 Charter challenge to a mandatory minimum sentence.

[9]           The first involves an individual or "particularized inquiry" which focuses on the individual circumstances of the offence and the offender. At this first stage, the sentencing judge must:

[10]        If the court finds a s. 12 violation, the court must consider whether the infringement can be justified under s. 1 of the Charter (although such justifications are rarely advanced in s. 12 challenges).

[11]        The second aspect (often referred to as the "reasonable hypothetical" or "generalized inquiry") arises when a sentence is not grossly disproportionate for the individual offender. In those circumstances, the court must consider whether a breach of s. 12 arises in reasonable hypothetical circumstances. If an infringement arises at the reasonable hypothetical stage, s. 1 justification is also possible (although rarely advanced).

[12]        Crown and Defence further agreed and submit to the court that this sentencing hearing should proceed in the following manner:

[13]        I have accepted these submissions and therefore have proceeded accordingly.

[14]        The provision of the Code under which the Accused has been charged summarily and convicted is s. 151. Sexual interference is a hybrid offence; the Crown may elect to proceed by way of indictment or summary conviction. It states as follows:

[15]        The relevant facts surrounding the offence and the conviction of the Accused are set out in my reasons for judgment rendered July 19, 2018, which are reported under the neutral citation as follows: R. v. C.G.J., 2018 BCPC 216 (CanLII), 2018 CarswellBC 2309, [2018] B.C.J. No. 3081 (the "Reasons for Judgment").

[16]        To assist in understanding the submissions before this court and the required analysis, the relevant facts may be summarized in the following manner:

[17]        There is a considerable amount of information before the court in the sentencing hearing about the Accused. The sources of this information are as follows:

[18]        The Presentence Report, the Gladue Report, and the Forensic Assessment Report (collectively the "Sentencing Reports") are all detailed and comprehensive. Each provides useful information about various aspects of the Accused. The Behavioural Conditions Reports are somewhat dated, but do provide useful information about the Fetal Alcohol Spectrum Disorder investigation and diagnosis of the Accused when he was approximately seven years of age.

[19]        As noted above, at the time of the offence, the Accused was 18 years of age. He is presently 20 years of age. He is a First Nations young man who lives with his Indigenous adoptive mother and father who raised him. He and his adoptive parents are members of the [omitted for publication] and all reside on their First Nation's reserve lands located on [omitted for publication] Island (the "Reserve"). It is a relatively small community and somewhat isolated. It has year‑round ferry service to Vancouver Island with multiple daily scheduled runs.

[20]        His biological mother, who was of European ancestry, was only 15 years of age at the time of his birth. She asked the Accused's adoptive parents to adopt the Accused and they did so shortly after his birth. The Accused's biological mother continuously suffered through severe addiction and misuse of drugs and alcohol. This occurred while she was pregnant with the Accused. The Accused has had very limited contact with his biological mother because of her addiction issues. The Accused's biological father, who was Indigenous, was not involved in the Accused's life until the Accused's later teenage years. This relationship was truncated by the overdose death of the biological father in July 2018, around the time of the trial of this matter.

[21]        The Accused has been raised in a large and a continuously‑supportive Indigenous family. His adoptive parents are very active within and are leaders of their First Nation's Community. They are significantly engaged in the cultural life and activities of their community.

[22]        The Accused has had the opportunity to be and has been part of these cultural activities, and specifically he has participated in longhouse ceremonies since around the age of 14. That cultural engagement appears to have increased since the time of the allegations giving rise to the charges, and the Accused's eventual conviction. The completion of this sentencing hearing has been delayed in part due to the Accused's extended participation in ceremonies leading to his initiation into the longhouse this past season, and his assumption of a role as a drummer in the ceremonial longhouse activities. The Gladue Report provides information about the Accused's desire to continue to participate and to expand his level of participation in these cultural activities. He has committed to "learning about Coast Salish healing principles and traditional teaching around wellness." The Accused also wishes to upgrade his Grade 12 status, such that he can enrol in formal Hul'iqumi'num language classes, being the traditional language of his First Nation.

[23]        The Behavioural Conditions Reports confirm that referrals were made to and assessments of the Accused obtained from a number of professionals when he was around age six to seven years of age, because of behavioural concerns at school and his level of educational progress. The results of the 2004 assessment by Dr. Jonathan Down, a Developmental Pediatrician, was a diagnosis of a "neurodevelopmental disorder with confirmed alcohol exposure" in utero. The neurodevelopmental disorder presented itself by way of a "pattern of cognitive and processing difficulties that reflected basic abnormalities in the function of his brain". This was specifically identified as "Partial Fetal Alcohol Syndrome (pFAS)".

[24]        In a Conference Summary Report dated November 10, 2006, Dr. Down reconfirmed the earlier diagnosis and noted as follows:

[25]        The Accused's pFASD condition was addressed during his elementary and secondary school careers by means of the use of educational assistants and counsellors from about Grade 4 until he graduated with an Evergreen School Completion Certificate shortly after the offence. I understand that he had a measure of consistency in the educational assistants assigned to him; he formed strong ties with some of them; he was considered by several of them to be polite, respectful and cooperative. However, the Accused encountered a multitude of challenges as a result of his pFAS condition throughout his school experience and he felt stigmatized and self-conscious.

[26]        Both the Gladue Report and the Presentence Report confirm that, since finishing high school, the Accused resided for short period of time out of the family home and then returned to it, where he remains at present time. His parents have a zero tolerance for drugs and alcohol.

[27]        He has obtained and sustained regular employment as a labourer in a local wood remanufacturing and pallet plant, with work scheduled from 7 a.m. to 3:30 p.m. each week day. This job remained available to him during the period of time that he was involved full‑time in the long house initiation rites and ceremonies. His career goal is to become a heavy duty machine operator or a truck driver.

[28]        Besides his cultural activities, the Accused continues his interest in soccer, both at mentoring and coaching youth from his First Nations community, and also by way of his own continued participation since age seven of playing the game at the team level. The participation has included travels to Europe with other youth members of his First Nation to compete in an international soccer tournament.

[29]        The focus of Forensic Assessment Report and the opinions sought of Dr. Dugbartey related to two questions, namely:

[30]        In order to provide those opinions, Dr. Dugbartey reviewed the Accused's clinical records, including the Behavioural Conditions Reports, and specifically noted the prior diagnosis of pFAS. He also examined the Accused's mental state and conducted psychometric testing on the Accused, as well as utilizing the Risk for Sexual Violence Protocol (RSVP).

[31]        Dr. Dugbartey's interview of the Accused and the mental state examination produced a number of important observations. The first is that the Accused's personal insight is rather low and that he continues to deny the offence. The Accused self-reported that while growing up he had negative emotional experiences when his sisters came and went from the family home. He was subject to bullying at elementary school and responded in an aggressive fashion when he was taunted about his disabilities arising from his pFAS.

[32]        As a result of the Psychometric Testing, Dr. Dugbartey estimated that the Accused's Full Scale IQ Score is within the low‑average range of intellectual classification at the 21st percentile. He exhibited a greater proficiency with visual abstract problem solving than verbal reasoning skills.

[33]        The test results of the Accused's academic achievement indicated that he exhibited "exceedingly low scores on measures of written spelling and arithmetic computation, each of which fell at the first percentile". His basic word reading, while slightly better, falls at "the third percentile and would be on par with the typical fourth grade student." He had higher sentence comprehension skills, but his earned score was found to be "on par with the average grade 8 student". Dr. Dugbartey therefore concluded that the Accused is "functionally semi-literate".

[34]        The application of the Risk for Sexual Violence Protocol (RSVP) identified a number of risk factors or markers for the Accused, in the five domains of: Sexual Violence History, Psychological Adjustment, Mental Disorder, Social Adjustment, and Manageability.

[35]        Based on these results, Dr. Dugbartey concluded that the Accused presents with a "moderate risk for sexual reoffending". In particular, Dr. Dugbartey cites the Accused's limited comprehension of social cues, coupled with his learning disorders identified in the Medical Reports at the time of the his pFAS diagnosis, his lack of personal insight, and a lack of keen awareness about his risk for sexual offending towards the victim as being a "big driver of [the] reoffending risk".

[36]        Having answered the first question about the Accused's risk of reoffending, the Forensic Assessment Report then addresses the second question regarding the Accused's cognitive capacity and ability (including his receptivity) to participate in risk offending mitigation programming. In that regard, Dr. Dugbartey again noted the Accused's low average intellectual skills and limited oral word and reading skills and functional semi-literate condition, and suggests that these would be a "significant limitation in how effective he can participate in a formal group-delivered sexual offender treatment program". He further notes that these types of difficulties (that is these challenges and barriers) "do not spontaneously remit", which I understand means they will not spontaneously abate and hence will continue to afflict the Accused.

[37]        Under the heading of "Recommendations", Dr. Dugbartey states that the Accused must be required to participate in a specialized sexual offender treatment program. However, the concern is again that there must be modifications made in the traditionally delivered program in a group format if the Accused is to learn anything from it. He goes on to state as follows: "such modifications, inasmuch as is feasible, would include low reading requirements, as well as individual follow-up on each session to ensure that he understands the concepts that were taught during the preceding session."

[38]        The Recommendations go on to suggest that the Accused "would likely be well suited for admission to the Personal Supports Initiative (PSI) Program" which is under the auspices of Community Living British Columbia. It is suggested that the PSI Program would assist the Accused with his "adaptive functioning in the community at large" and supplant the support he currently receives from living at home with his parents, especially if the Accused were to decide to take up independent living. Based upon his mother's letter of support, the support provided by the Accused's family has been and continues to be very significant and very committed.

[39]        The Recommendations of Dr. Dugbartey further note the necessity for the Accused to have a significant amount of support from an advocate, outreach worker, or responsible family member to initiate and sustain any counselling initiatives because of concerns about the ability and motivation of the Accused to do that on his own, notwithstanding his expressed interest in doing so. On a more positive note, Dr. Dugbartey sees some hope that the participation in the long house initiation rites could lead the Accused to internalize the traditional cultural practices which would "provide an enduring buffer to his reoffending risk".

[40]        The Gladue Report canvasses a number of applicable Gladue factors. The Gladue Report references the Supreme Court of Canada's decision in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 at paragraph 67, in which the court notes the systemic and background factors which have affected Indigenous people in Canada:

[41]        The Gladue Report notes, from an overview perspective, that some of the operative Gladue factors to be considered in this case include the fact that the Coast Salish people, of which the Accused is a descendant, have been displaced from their traditional territories and economically marginalized as a result. The overview factors also include the forced imposition of the Indian Residential School System which inflicted horrific intergenerational trauma and systematically disrupted Indigenous communities. These factors significantly impacted the adoptive family of the Accused and the resulting adoptive community of the Accused. The Gladue Report notes that the Accused is therefore a descendent, both through his biological father and his adoptive family, of survivors of the Indian Residential School System or survivors of the Indian Day Schools system.

[42]        The Gladue Report then makes specific mention that many of the factors specifically noted in paragraph 67 of R. v. Gladue and other related factors are apparent in the Accused's circumstances, "including: loss of family, community and culture; community fragmentation; biological family's substance abuse; and trauma."

[43]        In the course of preparing the Gladue Report, the author spoke to Dr. Jonathan Down, who had previously assessed the Accused at the time of the preparation of the Behavioural Conditions Reports about the important need for re-assessment of the Accused and the requirements for extensive support for persons with pFASD diagnoses. Dr. Down further observed to the Gladue Report writer about some risks to FASD individuals which is reported in the Gladue Report as follows:

[44]        The Presentence Report adds the following information. Under the heading of "Behaviour, emotional status", the Accused reported to the report author that he had witnessed a foster child in the family home "rape" the Accused's cousin (whom the Accused considered to be a "little brother"), by forcing the cousin and his sister to perform oral sex on that foster child perpetrator. Probation Officer Sharpe noted that the Accused was on reporting conditions from July 2018, but that there was an interruption in the Accused's regular reporting attendance between November of 2018 to April of 2019, because of his engagement in the longhouse activities.

[45]        The Presentence Report also details historical abuses and deaths suffered by member of the [omitted for publication] First Nation while attending Residential School on their traditional lands from1890 to the mid 1970's. The Presentence Report states that the Accused's paternal grandmother revealed she was sexually abused while attending residential school.

[46]        The Presentence Report further notes that the Accused "expressed little to no remorse for the victim of the offence as he denies any offence actually took place".

[47]        Notwithstanding this, I understand the Accused told Probation Officer Sharpe that he was willing to take any programs as directed by the court. I take this to also include the Sex Offender Treatment Program (SOTP) and the Sex Offender Maintenance Program (SOMP) which were discussed during the course of the Presentence Report interview.

[48]        The Presentence Report details the availability of the SOTP and SOMP, and its availability for the Accused in the community.

[49]        If the Accused is incarcerated as suggested by the Crown, and it is for a period of two years less a day, the sentence may be served at the Ford Mountain Correctional Centre where sexual offenders who satisfy the requirements of the Forensic Psychiatric Services Commission may be able to attend the Forensic Sex Offender Program (FSOP). A period of 12 to 18 months' incarceration is required to allow sufficient time to complete program. The Presentence Report also confirms that the same FSOP can be completed in the community by those offenders who meet the necessary conditions. It lasts for a period of 12 sessions. The follow‑up requires completion of SOMP by the offender. The Presentence Report says a period of 12 to 18 months of community supervision is required to allow sufficient time to complete the program.

[50]        The Letters of Support have a number of common themes. These include:

[51]        The Accused's own mother in her letter to the court contained in the Letters of Support states that she is of the view that her now 20‑year‑old son, the Accused, is "really only developmentally functioning at maybe 15-16 years of age." She speaks of the importance of him needing "predictability, structure and consistency" in his life, noting he still goes to bed at 8 p.m. every night and she still disciplines him when necessary by grounding him and taking away privileges.

[52]        She further states:

[53]        She further reports that every day she offers the Accused encouragement and reminds him about things like his use of the car when he gets off work.

[54]        A Victim Impact Statement was prepared by the Complainant (the "Victim Impact Statement"). It was received by the Crown on August 21, 2018, and it was presented in the sentencing hearing and marked as an exhibit. No direct update of the Victim Impact Statement from the Victim was provided, but some updated information was provided in the Presentence Report as noted below.

[55]        In the Victim Impact Statement, the Complainant recounts being permanently changed by the offence committed upon her by the Accused. She describes having difficulty sleeping due to nightmares; cloistering herself in her room; decreasing her food intake; separating herself from her closest friends; being paranoid; suffering from anxiety attacks; and panicking at the thought of encountering the Accused.

[56]        A description of the significant negative impact upon Complainant that is consistent with what is contained in the Victim Impact Statement also came out of the evidence in the trial from both the Complainant and her Grandfather, as is set out in the Reasons for Judgment.

[57]        The evidence of the Complainant's Grandfather, W.T., who has performed the role of her father throughout her life, confirms several aspects of the information set out in the Victim Impact Statement. In addition, he testified about her distraught emotional condition when she was recounting the offence to him later on the day of the offence.

[58]        He spoke about the fact that she has given up on a number of her extracurricular activities at which she excelled. He testified about her post offence experiences, which included a significant amount of counselling. He further described the huge difference in her scholastic performance marked by falling grades, including failing marks, a pattern of skipping school classes, and her experimentation with drugs, which fortunately was caught early and was appropriately addressed. Of great concern to the Grandfather was that the Complainant went through a month‑long period in the fall of 2017 of cutting herself on the arm and the leg with a razor blade.

[59]        The Presentence Report author spoke to the Complainant's grandmother and guardian V.T., spouse of W.T., who reported about the Complainant's constant fear of encountering the Accused within the community, which has apparently occurred unexpectedly at her place of employment and while attending various cultural and sporting events.

[60]        Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the offender (see R. v. Shoker, 2006 SCC 44, at paragraph 14, and R. v. Angelillo, 2006 SCC 55, at paragraph 22).

[61]        As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Code, but also be mindful that depending on the nature of the offence committed, certain principles will receive more emphasis than others (see R. v. McCormick, 2006 ABCA 410, at paragraphs 9 to 12).

[62]        The purposes and principles of sentencing are found in s. 718 to 718.2 of the Code. These sections codify and plainly state the intention and rationale for imposing particular sentences, as well as the common law principles of sentencing: R. v. Nasogaluak, 2010 SCC 6 (CanLII) at para 39.

[63]        Section 718 of the Code outlines the fundamental purpose of sentencing as:

[64]        Section 718.1 sets out and codifies a fundamental principle of sentencing. It directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender's responsibility.

[65]        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" (see R. v. Safarzadeh‐Markhali, 2016 SCC 14 (CanLII), para. 70).

[66]        Section 718.2, under the heading of "Other Sentencing Principles," states, in part, that:

[67]        Section 718.2(b) codifies the parity principle which holds sentences should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. In R. v. Ipeelee, 2012 SCC 13, the Supreme Court held that 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 paragraphs 53 to 57) that in British Columbia, as in most provinces, the appellate courts adopted the approach of sentencing ranges for a particular offence. D.M. Smith J.A. for the Court of Appeal in Williams stated (at paragraph 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 . . . ."

[68]        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.

[69]        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).

[70]        Section 718.2(e) does not permit the court to impose an unfit sentence: R. v. Jackson, 2012 ABCA 154. Thus, in deciding whether an Aboriginal offender should be incarcerated, a judge using all available information before the court about an offender must determine whether restorative justice should be given more weight than traditional objectives of sentencing, such as deterrence and denunciation.

[71]        The fact that an offender is Aboriginal, on its own, does not justify a different sentence. However, the uniqueness of Aboriginal offenders can justify a disparity between the sentences of an Aboriginal versus a non-Aboriginal person (see Ipeelee). Further, as stated in R. v. Ladue, 2011 BCCA 101 at para. 45, " . . . there is no automatic Aboriginal discount" of a sentence, and the more serious the crime, the more reduced role the systemic factors play in crafting a sentence. Also, as the British Columbia Supreme Court wrote in R. v. Sam, 2014 BCSC 1267 at paragraph 21:

[72]        Therefore, the objective is not to favour Aboriginal offenders over other offenders; rather background and systemic factors are considered for all offenders (thereby justifying disparity in sentences (see R. v. Pangman, 2011 MBCA 64)). While rehabilitative and Gladue objectives need to inform a fit sentence, they do not automatically trump other sentencing objectives and sometimes public safety is paramount (see R. v. Cisneros, 2014 BCCA 154; see also R. v. Killiktee, 2013 ONCA 332).

[73]        Highly aggravating factors leave little scope for a reduction of a sentence based on the offender's Aboriginal heritage (see R. v. Thorn, 2013 NWTSC 8). Separation, denunciation and deterrence retain their relevance for some offenders who commit serious offences (see R. v. Jacko, 2010 ONCA 452; R. v. Blind, 2013 SKPC 168). Restorative objectives do not trump other sentencing objectives in every case involving Aboriginal offenders. Section 718.1 of the Code still requires that a sentence be proportionate to the gravity of the offence, regardless of whether the offender is Aboriginal or non-Aboriginal (see R. v. Paul, 2014 BCCA 81).

[74]        The fundamental principle of proportionality requires an assessment of the offender's moral blameworthiness. Any historic and individual circumstances of an Aboriginal offender are highly relevant to that assessment, regardless of the nature of the crime (see: R. v. D.G. 2014 BCCA 84).

[75]        There is no burden on an Aboriginal offender to establish a causal link between the Gladue factors and the commission of the offences (see R. v. Eustache, 2014 BCCA 337]. However, as noted in Ipeelee, unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives should be actualized, such factors do not influence the ultimate sentence. In determining the impact of Gladue factors, the courts cannot abandon traditional concepts of relevance (see R. v. Edmonds, 2012 ABCA 340; see also R. v. Donetz, 2013 ABCA 95). The sentencing judge must consider and explain whether the circumstances are relevant to determining a fit sentence by effecting the offender's degree of blameworthiness for the offence (see R. v. Napesis, 2014 ABCA 308, and see, for example, R. v. Cochrane, 2013 BCCA 93).

[76]        Although the Accused bears the onus of establishing mitigating factors on a balance of probabilities, Ipeelee says it can be difficult for Aboriginal offenders to establish direct causal links between the circumstances and the offending behaviour. The interconnections are often too complex. Imposing the burden of persuasion on an Aboriginal offender to establish a direct causal link demonstrates "an inadequate understanding of the devastating intergenerational effects of the collective experience of Aboriginal people and would impose a burden on offenders that Gladue never intended" (Ipeelee at paragraph 82). While an Aboriginal offender need not establish a direct causal link between his or her personal circumstances and the predicate offence, the Gladue factors nonetheless need to be tied to the offender and the offence in some way (see R. v. D.B., 2013 ONCA 691). A sentencing judge cannot simply apply "an automatic discount" to an offender because of the experience of his ancestors, without discussing how the offender's Aboriginal heritage had any relationship to the offence or his moral culpability (see R. v. Popowich, 2013 ABCA 149; and see R. v. McArthur, 2013 SKCA 139). A sentencing judge must ask themselves what combination of systemic or background factors contributed to or impacted on a particular offender's culpability for the particular offence. Examples included are how has the offender been affected by substance abuse in the community or poverty or overt racism or family or community breakdown? (See R. v. Knockwood, 2012 ONSC 2238.)

[77]        R. v. Gladue instructs sentencing judges that in sentencing an Aboriginal offender, the sentencing judge must carry out a three-step process:

[78]        The authorities are clear that, practically speaking, Gladue factors can affect a sentence in two ways:

[79]        Gladue factors should be considered when determining the appropriate sentence for an offence, in conjunction with any mitigating and aggravating factors and "not at the end when reviewing the sentence on the basis of totality" (see R. v. Charlette, 2015 MBCA 32). The Gladue factors are to be considered with all other mitigating factors. The weight to be given will vary from case to case. The factors are not to be considered after the sentencing judge has determined an otherwise fit sentence to decide whether the sentence should be reduced on the basis of Gladue factors (see R. v. Dick, 2015 MBCA). In addition to considering restorative justice processes for Aboriginal offenders, sentencing judges can also address Gladue factors in crafting appropriate conditions for probation or conditional sentence orders. If community support and supervision are available, it might be possible to impose a non-custodial sentence in situations where jail has seen to be the only viable option. In other words the court must explore alternatives.

[80]        Of particular importance in this case is the provision of s. 718.01 which deals with offences against children and provides:

[81]        Therefore s. 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 s. 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. The 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.

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

[83]        I respectfully agree with the comments of the Honourable Judge J.T. Doulis in R. v. J.M., 2019 BCPC 235, when she says at paragraph 37 as follows:

[84]        The principles which underlie conditional sentences are set out in ss. 742‑742.7 of the Code. R. v. Proulx, 2000 SCC 5 (CanLII), [2000] 1 S.C.R. 61, describes the proper approach to the application of these principles (see para. 127).

[85]        Some of those principles that are particularly relevant to this case are as follows:

[86]        Section 718.2(b) directs that a sentence be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. However, because of the proportionality principle and individualized sentences, the parity principle does not preclude disparity where warranted by the circumstances. There is no such thing as a uniform sentence for a particular crime (see R. v. L.M., 2008 SCC 31 (CanLII), [2008] 2 S.C.R. 163).

[87]        As noted above, s. 718.2(d) says that an offender should not be deprived of liberty if less restrictive sanctions may be imposed in the circumstances.

[88]        Section 742.1 of the Criminal Code lists four requirements that must be met before a judge imposes a conditional sentence:

[89]        The first requirement speaks for itself. In this case the MMS of 90 days statutorily prevents the use of a conditional sentence order, unless this court declines to impose the MMS in the manner described above.

[90]        Dealing with the second criteria, a conditional sentence duration will depend on the type of conditions imposed. Therefore, I should not determine the sentence duration separately from deciding whether it is to be served in jail or in the community. Furthermore, a conditional sentence will depend on the type of conditions imposed: see Proulx, supra, paragraphs 50 and 52.

[91]        Because this court is statutorily required to consider a term of imprisonment of not more than two years as the maximum sentence, a conditional sentence may be available under s. 742.1 if this court declines to impose the MMS. In that case, I must in my analysis therefore consider if it is appropriate for the Accused to serve his sentence in the community.

[92]        Dealing with the third requirement and before imposing a conditional sentence, I must be satisfied that serving the sentence in the community would not endanger the safety of the community: see s. 742.1(a). It is the risk posed by this particular Accused that I must consider when answering this question, and not the broader risk of whether a conditional sentence would endanger the safety of the community by providing insufficient deterrence or undermining the general respect for the law. Therefore, I must take into account the risk of the Accused reoffending and the gravity of the damage in the event of reoffence.

[93]        It is the risk of any criminal activity by an offender that I must consider, and not just the risk of physical or psychological harm to individuals.

[94]        With respect to the fourth requirement, I must determine whether a conditional sentence in these circumstances is consistent with the fundamental purpose and principles of sentencing in ss. 718 to 718.2. In Proulx, supra, at 127, the Supreme Court provides sentencing judges with the following guidance:

[95]        I am mindful that a conditional sentence is discretionary. Meeting the statutory prerequisites of s. 742.1 does not entitle the offender to a conditional sentence. However, when these have been met, given the principles of restraint in using imprisonment and the necessity to consider all available sanctions, as set out in ss. 718.2(d) and 718.2(e), a failure to consider a conditional sentence may constitute a reversible error: see Proulx at paragraphs 82 to 85, 90, 116, 121 to 122, and 123 to 126.

[96]        The British Columbia Court of Appeal in the decision of R. v. Voong, [2015] B.C.J. No. 1335, 2015 BCCA 285, reviewed the nature of a suspended sentence and noted at paragraphs 19 and 20 as follows:

[97]        In Clayton Ruby, Sentencing, 8th edition ("Ruby"), at pages 434-436, the use of a suspended sentence and accompanying probation is canvassed in fuller detail.

[98]        Ruby states that a suspended sentence and probation are especially useful in cases that do not require a period of incarceration for deterrence or denunciation. The learned author further notes that imposition of a suspended sentence is not confined to offences that do not require deterrence. The suggestion is made that where a suspended sentence and probation are imposed, general deterrence by way of a period of imprisonment remains a possibility if the offender chooses to avoid the controls selected by the court for his rehabilitation. Thus, an offender who "chooses to avoid the controls" by breaching may very well end up in prison (see Ruby, pages 434 and 435, paragraph 10.5).

[99]        Parenthetically, I note that Kelly J.A. in R. v. Hudson (1968), 1967 CanLII 144 (ON CA), 2 C.C.C. 43 (Ont. C.A.) at paragraph 11, opined that a suspended sentence can conceivably be more onerous than a sentence involving immediate imprisonment. Such might be the case if an offender were to breach in the last month of the probationary period and thus be exposed to serving the full term appropriate for the offence of which he was convicted, notwithstanding he had virtually completed the terms of his probation satisfactorily.

[100]     Ruby further notes a suspended sentence and imposition of probation is unlikely to be appropriate where an offender has many previous criminal convictions, there is a sophisticated criminality, or there are very serious charges. Notwithstanding the existence of such factors, they do not militate absolutely against the use of the suspended sentence and the imposition of probation (see Ruby, page 435 at paragraph 10.5).

[101]     Similarly, a suspended sentence may be appropriate even if probation has not been fully successful in the past, especially if a previous probation was somewhat helpful. In situations where the offender has been on several probation orders with "discouraging results", a court should pause long and "have knowledge of grave and weighty matters in mitigation before trusting the offender with a further period of probation," noting further that, while the community is well served by a factor of rehabilitation, it is also entitled to protection against offenders who "demonstrate that they are a bad risk." In support of this proposition, Ruby cites R. v. Walker (1981), 3 A.Crim.R. 200, at page 203 (see Ruby: page 435 at paragraph 10.6).

[102]     Thus, Ruby notes that the most obvious use of a suspended sentence and a probation order is in the case of first offenders who have committed crimes that are not too serious. In such situations, courts should explore other dispositions which are open to it and impose a custodial sentence only where "the circumstances are such or the offence is of such gravity that no other sentence can be appropriate," (see Ruby: pages 435-436 at paragraph 10.7).

[103]     The availability of a suspended sentence in the present case also faces the statutory barrier of the existence of the MMS. Hence its use will require this court to decline to impose the MMS.

[104]     Section 732 of the Code provides for intermittent sentences, and requires the offender to comply with the mandatory conditions prescribed in the Code when not in confinement. The maximum length of an intermittent sentence is 90 days. An intermittent sentence permits an offender to serve the sentence on an intermittent basis, and thereby the offender may be able to continue employment, live at home on weekdays, and serve the sentence on weekends. In determining whether or not to permit the offender to serve the sentence on an intermittent basis, the court must consider the character of the offender, the circumstances of the offence, and the availability of appropriate accommodation to ensure compliance with the sentence.

[105]     A conditional discharge is available under s. 730 of the Criminal Code, and s. 730(1) sets out the requirements. Those requirements have been interpreted by the decision of our Court of Appeal in R. v. Fallofield (1973), 1973 CanLII 1412 (BC CA), 13 C.C.C. (2d) 450. The statutory requirements are that the conditional discharge must be in the best interests of the accused and not contrary to the public interest.

[106]     Fallofield sets out several requirements with respect to the use of a conditional discharge. The important thing is that statutorily it is not available in this particular set of circumstances. Fallofield indicates to us that the section contemplates the commission of an offence, but there is nothing in the language that limits the offence to a technical or a trivial violation.

[107]     Fallofield also tells us the two conditions precedent to the exercise of the jurisdiction. The first is that the court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, brings the consideration of a conditional discharge to an end. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation. That second condition precedent is that the court must consider that a grant of the discharge is not contrary to the public interest.

[108]     Fallofield further indicates that the first condition would presuppose that the accused is a person of good character, without previous convictions, and that it is not necessary to enter a conviction against that person in order to deter him from future offences or to rehabilitate him and that the entry of a conviction against him may have significant adverse repercussions.

[109]     In the context of the second condition, that is, of public interest in the deterrence of others, Fallofield tells us that that condition must be given due weight, but it does not preclude the judicious use of the discharge provisions.

[110]     Fallofield also indicates that the discharge should not be exercised as an alternative to either probation or a suspended sentence. It also indicates that the court should not be utilizing the discharge provisions routinely in any particular fashion. That may give rise to an apparent lack of uniformity in the application of the discharge provisions. Fallofield also indicates that this lack of uniformity will be more apparent than real and will stem from the differences in the circumstances of each case.

[111]     One of the statutory preconditions for the use of an absolute or conditional discharge is that the offence must be other than an offence for which there is prescribed minimum punishment. Therefore the availability of a discharge in the present case faces the statutory barrier of the existence of the MMS. Hence its use will require this court decline to impose the MMS.

[112]     I am going to pause. I am going to stand down. I am approximately half way through, and so we will stand down and if we could resume at two o'clock, all right. Thank you.

[113]     THE SHERIFF: Order in court.

[114]     THE CLERK: Recalling the matter at bar, the matter of C.G.J.

[115]     THE COURT: Thank you. Continuing.

[116]     The following case authorities have been cited and relied upon by Crown:

[117]     As previously noted, and having regard to the application of the various principles cited in the Crown's cases noted above, as well as the range of sentences set out in those cases (see in particular R. v. E.M.Q. at paragraphs 59-84), Crown submits that a fit and proportional sentence in all of the circumstances of this matter would be imprisonment for a period of six to eight months, followed by two years of probation and a number of ancillary orders.

[118]     Crown basis its sentencing position upon the foundation that sexual interference is, objectively, a serious offence requiring a commensurately significant sentence. Crown says this is evident from the fact that it is punishable by imprisonment of just under two years when prosecuted by summary conviction, and up to 14 years when proceedings are by indictment.

[119]     Section 718.01 of the Criminal Code mandates that sentencing judges give primary consideration to the sentencing principles of denunciation and deterrence where the crime involves the abuse of a person under the age of 18 years, as is the case here. Thus says Crown, Parliament has expressly instructed sentencing judges to consider the particular gravity of this offence and giving primary consideration to punitive sentencing principles.

[120]     Furthermore says Crown the objective seriousness of the offence is highlighted by the steps that Parliament has taken over time to address this significant offence. In that regard, Crown notes that the mandatory minimum sentence associated with s. 151(b) has been increased twice since 2005 (from 14 days to 45 days in 2005, and from 45 to 90 days in 2012). It further says that these legislative efforts serve to underscore the objective seriousness of this offence, and the need for "illustrative sentences reflecting Parliament's objectives in addressing it as a pressing concern".

[121]     In addition to these statutory indicators of the objective gravity of sexual interference, Crown submits that the jurisprudence from all levels of courts has noted the need for sentences of increasing severity, and has articulated growing awareness of the devastating harm associated with sexual offences committed against children, and hence an upward trend in sentences for these type of offences (see for example R. v. Allen at paragraph 57; R. v. J.L.C. at paragraphs 30-32; R. v. D.L.W.).

[122]     Crown goes on to state that the jurisprudence has identified a number of key principles to be implemented in sentencing offenders for these types of offences.

[123]     Crown cites the British Columbia Court of Appeal decision in R. v. Allen in support of its submissions that, in addition to deterrence, this court must give primary importance in sentencing to the objective of denunciation, being an expression through the courts of society's condemnation and abhorrence regarding sexual offending conduct against children, and to thereby attach negative consequences to this type of undesirable behaviour. In addition, such judicial sentences should be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Code, and as a collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law (see Allen at paragraphs 59 and 60).

[124]     In addition to the statutory aggravating factor set out in s. 718.2(a)(ii.1) of abuse of a person under the age of 18 years, Crown notes and relies upon other circumstances which it says are aggravating in nature and must be considered as such by this court.

[125]     Those element include the following:

[126]     Crown accepts that there are relevant mitigating factors, namely:

[127]     However, Crown argues that, given the absence of a recent diagnosis, actual expert medical evidence presented at trial or on the sentencing, or a proven link between the Accused's condition and the commission of the offence, these factors are mitigating in a general sense only and do not materially affect the Accused's degree of moral culpability. In particular, with respect to the pFAS diagnosis, Crown says that the information in support of that diagnosis is "extremely dated" and relates to the Accused at age seven years, rather than what would be expected by way of a professional diagnosis, assessment, and treatment recommendations for a young adult. In that regard, Crown says that the Gladue Report references discussions with Dr. Down which indicate that the Accused is long overdue for reassessment.

[128]     Therefore Crown first submits that this court is left with "a complete dearth of relevant, current information regarding either what has been done over the last 13 years to treat and/or mitigate the effects of [the Accused's] pFAS diagnosis or any current, professional diagnostic information to explain the nature or degree of the symptoms as experienced" by the Accused at present.

[129]     Crown therefore argues that the general nature of the medical evidence provided by the Accused is of "extremely limited use to the court in a specific and meaningful way". Secondly, Crown submits that there is no current expert medical evidence before the court to specifically address two important issues that this court must address namely: (a) what role or degree did the Accused's cognitive diagnosis and conditions play in the commission of this particular offence, or (b) how specifically should it factor into the sentencing analysis.

[130]     Crown submits that the Forensic Assessment Report may be relied upon to assess the Accused's continuing risks and ability to effectively respond to programming, but that it does not nor was it intended to provide an updated diagnosis on the Accused's pFAS diagnosis or opine upon any causal links between such diagnosis and the offence committed by the Accused.

[131]     Relying upon R. v. Harris and R. v. Ramsay, Crown says that this court must have before it and must rely upon reports from a qualified expert to consider those causal links as they relate to pFAS and, for specific cases, it cannot rely upon "mere generalizations from legal commentary" (see R. v. Harris at paragraphs 21 and 26; and see R. v. Ramsay at paragraph 15). Furthermore, it is to the extent that FASD is demonstrated to have been attenuated or diminished the moral blameworthiness of the Accused that must be taken into account (see R. v. Ramsay at paragraph 19). I understand that Crown is saying that the link to diminished moral blameworthiness has not been satisfactorily established.

[132]     Crown further relies upon the premise that when considering the mitigating effect that should be attached to the Accused's "particular, mental health and cognitive state" that consideration must be made of the Accused's "current state". Crown notes that this court, after hearing evidence about these conditions and problems directly from the Accused during the trial, the court concluded at paragraph 170 of the Reasons for Judgment, when assessing the reliability and credibility of the Accused's evidence, that notwithstanding his developmental problem, "he clearly understands questions and concepts and was able to provide coherent answers." Thus, I understand that Crown is saying that the Accused's apparent "current state" therefore reduces the level of reliance that this court should be placing on these mitigating factors in the sentencing analysis, because of the Accused's apparent current level of ability to reason and comprehend.

[133]     Crown notes that this court's sentencing analysis will require consideration of the operative Gladue factors outlined in the Gladue Report, and in particular notes the importance of the adverse effects of colonization, intergenerational effects, and residential schools. Crown notes that these and other factors have impacted on the Accused's family and community. However, relying on the approach of the Ontario Court of Appeal in R. v. F.H.L, supra, Crown submits that in order to be relevant to sentencing, an offender's Aboriginal background need not be causally connected to the offence for which a sentence is being imposed (see paragraph 38). But in order for the systemic Gladue factors to influence the ultimate sentence, those factors must have impacted the offender's life in a way that: (1) bears on the offender's moral blameworthiness; or (2) indicates which type of sentencing objectives should be prioritized in the offender's case (see paragraph 40).

[134]     As I understand it, Crown is saying that the Gladue factors in this case have little effect on the Accused's blameworthiness and do not take away from the imposition of a custodial sentence that prioritizes denunciation and deterrence. Reliance is placed by Crown upon the "proper approach" for the use of Gladue factors to influence the ultimate sentence of an Aboriginal offender as set out in R. v. F.H.L.

[135]     Crown further submits that in its sentencing analysis and because the Complainant victim is an Aboriginal female, this court must be mindful of the direction of the Supreme Court of Canada in R. v. Barton at paragraphs 197 to 201, and must thereby take reasonable steps to address "head on" systemic biases, prejudices, and stereotypes, in particular against Indigenous women. The Supreme Court at paragraph 1 of Barton identifies that one of the most pressing challenges we face as a society is without a doubt "eliminating myths, stereotypes and sexual violence against women", and in particular against Indigenous women, which is characterized as "tragically common". Therefore, as I understand Crown's submission, in its sentencing analysis this court must recognize that these factors identified in Barton exist in this case, and then this court must find a balance between those factors and the operative Gladue factors.

[136]     Thus, Crown says that this required balancing justifies and supports the custodial sentencing position advanced by Crown.

[137]     Furthermore, Crown opposes the making of a conditional sentence order, even in the absence of the imposition of the statutory MMS, upon a consideration of one of the prerequisite conditions of public safety if the sentence were to be served in the community. This requires consideration of the risk of the Accused reoffending and the gravity of ensuing damage in the event of a reoccurrence of offending behaviour. Crown says that for a number of reasons, and having regard to the circumstances, this prerequisite cannot be met. Crown therefore contends that a conditional sentence order will not be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[138]     Similarly, Crown argues that in all the circumstances of this case, a non‑custodial sentence involving a discharge or a suspended sentence is wholly insufficient to meet the sentencing goals, particularly the principle giving primacy to denunciation and deterrence. A discharge or a suspended sentence would also be well outside of the established range of applicable sentences for this offence in similar circumstances.

[139]     I have reviewed and summarized below a number of the cases upon which Crown is relying for their suggested sentencing range of the Accused.

[140]     The 21-year-old Indigenous offender was convicted of the indictable offence of sexual interference of a 14-year-old Indigenous female babysitter, contrary to s. 151(a) of the Code. The victim was awoken by the offender, who asked to kiss the victim. When she refused, the offender wrestled with the victim, leaned into her, and attempted to touch her breasts and vagina. The victim resisted the offender's repeated attempts to touch her. He succeeded in touching her on her clothing in the pelvic area above her vagina. The victim was significantly affected by the incident. The court found that the nature of the sexual interference by way of unwanted touching over the clothing, although serious, fell towards the lower end of the range of conduct caught by s. 151 (a). The offender lacked insight, lacked remorse, nor did he accept responsibility. The court found that the aggravating factors outweighed the mitigating factors, in particular citing the vulnerability of the victim, particularly while she was sleeping, and the significant emotional impact on her. The offender had a prior criminal record. There was insufficient evidence to support a diagnosis of FASD. Gladue factors were applicable and it was noted that the offender had a childhood marked by domestic violence and alcohol abuse. The mandatory minimum sentence of one year was held to be not grossly disproportionate. The offender was sentenced to 13 months' imprisonment, followed by two years of probation, although the court noted that, absent the one‑year mandatory minimum, a nine‑month custodial sentence was proportionate to the offence and the offender's moral culpability.

[141]     The 50-year-old First Nations offender was convicted, after a trial, of sexual interference, contrary to s. 151. That involved a 15-year-old victim, and invitation to sexual touching, contrary to s. 152 against a separate 15-year-old victim. The victims were both males. The sexual interference consisted of touching the first victim's shoulder briefly for between two to five seconds in the course of carrying on a sexualized discussion. The invitation to touching followed, with an offer to the other 15-year-old victim to provide marihuana joints in exchange for sex. There were no long-term negative impacts on either of the victims. The offender, was at the time of the offence, homeless and without supports, drinking heavily, and utilizing his monthly disability cheque to procure the alcohol. He also had a series of medical issues. Subsequent to the offence, he had undergone significant rehabilitative steps. He had a dated, minor criminal record. Crown sought 120 days of incarceration followed by two years' probation. Defence sought a three-year term of probation. The Provincial Court determined that a time‑served sentence of 33 days, followed by a lengthy period of probation, would not be out of the range in the circumstances, and then went on to find that the 90‑day jail sentence, particularly within the framework of Gladue and Ipeelee factors, to be excessive but not grossly disproportionate.

[142]     The Provincial Court dealt with an application by the 29‑year‑old non‑Indigenous offender to challenge the 90‑day mandatory minimum sentence being sought by Crown for sexually assaulting a 14-year-old girl on a transit bus, contrary to s. 271(b). The offence for which the offender was convicted, after a trial, arose when the offender, after continuously staring at the victim, extended his arms and legs towards the victim, who was standing at the exit door of the transit bus, and then reached out with his hand and touched or flipped up the lower part of her skirt two or three times. The part of the skirt was immediately adjacent to the victim's exposed bare legs, below but near her buttocks area. The victim was adversely affected by what she concedes may seem like "minor" sexual misconduct, with the loss of independence and innocence, and the resulting inability to be able to ride to school on a bus. The offender was without a criminal record, and was assessed as having a presentation consistent with a person who has a brain injury and who presented as operating at a very low level of cognitive function. He apparently suffered from "high impulsivity". He appeared to have been assessed as a low to moderate risk of reoffending. He was able to maintain part-time employment and was in receipt of disability benefits due to his perinatal brain injury. He expressed some remorse. The court determined that the sexual misconduct was at the lower end of the scale, but nevertheless was serious because it was committed against a child in a public setting where a child was entitled to be safe and feel safe from sexual abuse. The court determined that the mandatory minimum sentence was not grossly disproportionate, and therefore held that the offender had not established, on a balance of probabilities, that the mandatory minimum constituted cruel and unusual punishment.

[143]     The Indigenous offender, who was 27 at the time of the offence, was convicted after a four-day trial of committing the indictable offence of sexual interference contrary to s. 151(a) of the Code against a then 14-year-old female victim, who was the daughter of his separated partner, and therefore he was in a trust-like relationship with the victim. The offender abused alcohol and many of his prior offences (but not sexual or involving children) occurred as a result of that excessive consumption. The offender unsuccessfully text messaged the victim to gain entrance into the grandparents' residence. While impaired by alcohol, the offender surreptitiously entered into the grandparents' residence and proceeded to the victim's bedroom. The victim was asleep on her bed. The offender lay down beside her. He hugged her from behind and then lifted her shirt and kissed her neck and back. He moved her legs apart, at which time she awoke, sat up, and told him to stop. He did so and got up and left the room and departed from the house. The victim, described by the court as being a "young 14", and her twin sister were negatively impacted by the incident and became less trusting, more distant with extended family members, and much less demonstrably affectionate with certain extended family members. At the time of the commission of the indictable offence, it carried a mandatory minimum sentence of 90 days. The offender sought the court to find the mandatory minimum sentence was of no force and effect, on the basis that it was inconsistent with ss. 7 and 12 of the Charter. The offender was gainfully employed in the mining sector, which required him to live in camp, three weeks in and one week off. The court accepted that there were operative Gladue factors and that the offender had been exposed and had experience alcoholism, violence, and sexual molestation arising from the breakdown of family, community values, and traditions as a result of colonization, settlement, and residential schools, which left him vulnerable. The court further concluded that the offender had accepted responsibility for the offence and demonstrated empathy for the victim. However, he continued to lack insight into why he had acted as he did and that was an important consideration, notwithstanding that he was a low to moderate risk to reoffend, with elevated risk when using alcohol. He was open to participation in counselling. The court found that defence had not established, on a balance of probabilities, that the offender suffered some form or manifestation of fetal alcohol effect (FAE). The court accepted that, in the circumstances of this case, a conditional sentence order of a term of eight months (in the absence of the mandatory minimum sentence) would be a proportional sentence and a valid alternative to a mandatory term of actual jail. However, the court found that in this case, denunciation and deterrence required a real jail sentence and, from its analysis, found that mandatory minimum sentence was not grossly disproportionate and did not breach the offender's s. 12 Charter right. The sentence imposed was 90 days of incarceration to be served on an intermittent basis and three years of probation.

[144]     The non-Indigenous 22-year-old offender was convicted and therefore before the court for sentencing for the indictable offence of sexual interference, contrary to s. 151 of the Code, and internet child luring, contrary to s. 172.1 of the Code. The victim was 13 years of age. At the time of the offence, there was a mandatory minimum sentence of 45 days with respect to the sexual interference, and there was no mandatory minimum with respect to the luring offence. The initial internet luring led to meetings between the offender and the victim, and then to sexual intercourse without any force or violence. Subsequent to that sexual interaction, the victim broke off the relationship, and thereafter the offender attempted to re-establish a connection with the victim with the use of an internet alias. The offences had a profound effect and significant emotional impact on the victim. At the time of the offence, the offender had a serious alcohol problem, a sporadic work history, and limited education. He was assessed by a psychiatrist as being an anxious young man who lacked social skills and was generally low functioning. He had one theft conviction six years prior to the sexual offences. There was no indication of mental illness or sexual prevalence or attraction to children. He was psychiatrically assessed as being low to moderate risk to reoffend. He expressed remorse over his offending and accepted responsibility for the negative impact on the victim. The Accused took several positive steps following the offending to deal with a number of his issues, including alcohol misuse, and gained steady employment. The defence sought a non‑custodial sentence in the form of a conditional sentence order, which was only available if the offender successfully challenged the mandatory minimum sentence on the basis that it offended the offender's rights under the Charter. The Crown sought a custodial sentence in the range of between 15 months to two years in prison. The court found that the then‑applicable 45‑day mandatory minimum was not grossly disproportionate in the circumstances of the offences and sentenced the offender at the low end of the stated range, resulting in a 15‑month custodial sentence followed by two years' probation.

[145]     The 35-year-old non-Indigenous offender was convicted after trial and was before the court for sentencing on two indictable counts of sexual interference contrary to s. 151 of the Code. The victims were the five-year-old and the six-year-old daughters of the offender's partner. Accordingly, the offender abused a position of trust or authority. The incidence primarily involved the offender lying in bed with the victims and using his hand to rub their genitalia and buttocks, putting his tongue in their mouths, and kissing the back of the five‑year-old victim. For the purposes of sentencing, the court found that there was one occasion of offending for each victim. The offender had a prior criminal record involving domestic assault and various breaches, but no sexual offences. He had a limited education, a long history of hard drug use, significant difficulty managing his anger, and was psychiatrically assessed of lying and inventing stories. He suffered a closed‑head injury from a motorcycle accident and had suffered from major depressive disorders and suicidal ideation. The forensic assessment found the offender to be within the moderate to moderate-high risk category for sexual reoffending. The offender continued to deny the offences during his post-conviction assessment. The offender was sentenced to 11 months consecutive on each of the two counts, for a total of 22 months, and a one‑year term of probation.

[146]     The Indigenous offender, who was between 20 and 21 at the time of the offences, was before the court for sentencing on one count by way of indictment of sexual touching contrary to s. 151 of the Code. One female victim was nine years of age at the time of the offence and the other was 15 years old. The 15-year-old victim had consumed alcohol at a party and passed out on a couch. As she was sleeping, she felt a hand across her body and go for her pants and fondle her genitals. She assumed it was her boyfriend. She pushed the hand away, only to have the offender attempt to unbuckle her belt, at which point she realized it was not her boyfriend, but rather the offender. The nine-year-old victim considered the offender to be her family. The nine-year-old was sleeping on the couch, dozing, when she became aware that the offender had put his fingers on her vaginal area over her yoga pants and rubbed it for a couple of minutes. Some related admitted circumstances were submitted regarding another 15-year-old victim, a first cousin of the offender, who awoke after over‑consumption of alcohol to find that her breasts were exposed, a bite mark bruise on her left breast, and her pants were down and a used condom was between her upper thighs. All three victims filed impact statements speaking to the ongoing emotional pain, fear, anger, and shame that they had suffered due to sexual interference, and the difficulties they had endured within their families and their community. A presentence report with a Gladue component provided brief information about the existing Gladue factors that the court accepted as being sufficient to somewhat reduce the offender's moral culpability. The offender had no prior criminal record, had taken carpentry training and maintained work. He had a history of abusing substances including hard and soft drugs and alcohol. He accepted responsibility, was remorseful, although he did not plead guilty until the trial date. He had reconnected with the cultural activities during his pretrial incarceration. His prospects for rehabilitation were found to be positive. The offender was sentenced to 12 months' incarceration and three years of probation. Judge Challenger, who was the sentencing judge in this matter and also in R. v. K.L.L., noted that the sexual interference in this case was more serious than in K.L.L. and also in this case the offender's moral culpability was higher than in K.L.L.

[147]     The Aboriginal offender pled guilty to sexual touching of a 10-year-old and a nine-year-old victim, each being extended family members and therefore the offender stood in a position of trust to the victims. The offences occurred four years apart. The offences were contrary to s. 151 of the Code. At the time of the first offence, the offender was 20 years old and 24 years old at the time of the second offence. The first offence occurred in 2008, at which time the victim was sleeping on a couch and awoke to find the offender rubbing his unexposed penis against her buttocks. The victim's clothes were not removed. The first victim reported the matter to her mother, but nothing was done while they were away from the reserve where their extended family resided. The second offence occurred in 2012. The offender returned home, under the influence of alcohol, entered the room where children were sleeping, lay down beside the victim, and began to touch her genital area over the top of her pyjamas. She told him to stop, screamed, and pushed the offender away, and went and told an adult female. Both victims were significantly traumatized by the offences. The offender had a prior domestic assault conviction. He suffered from an unstable upbringing and, as a child, was sexually abused by a male family member. A number of Gladue factors were present and the court found that the systematic effects of colonization and the resulting intergenerational trauma experienced by native people had impacted the offender, and therefore his moral culpability was mitigated by that unique background. The offender had some cognitive challenges. The offender entered an early guilty plea, took responsibility for his offending behaviour, showed empathy and remorse for his offences, was ashamed, and accepted the need for counselling. The offender maintained seasonal work. He was found to be a moderate risk to reoffend should he continue to drink and be left unsupervised around children. The offender used marihuana to excess and had a history of substance abuse. Although sexual touching and interference are serious offences, the court found that the touching in this matter was determined to be at the low end of the spectrum of seriousness. The court took into account the minimum sentence of 45 days in force at that time, and noted the sentencing range of being six or nine or 12 months for a first offence at the low end of the range of seriousness. A six‑month custodial sentence was imposed, together with probation for a period of three years.

[148]     At the time of the offence, the 19-year-old non-Indigenous offender traded rides home and cigarettes for oral sex from the 13-year-old victim C.W., which had occurred on multiple occasions. On one occasion the female victim C.W. forced the other 13-year-old female victim J.P. to perform oral sex on the offender, and the offender acquiesced to the activity. Both complainants were in foster care and vulnerable and were adversely affected emotionally by the offences, as were their families. The offender was assessed as being immature for his age, with low average intelligence and with a possible learning disorder, and had no prior criminal record. He entered a guilty plea on one count of offending against each of the two victims. He had full support of his family, a positive background and work record, which included working as a security guard, but not at the location where he met the victims, was assessed as a relatively low risk of reoffending, accepted moral culpability, and was remorseful and had positive prospects for rehabilitation. Crown sought 12 to 18 months' imprisonment on the two counts, plus two years' probation. The defence sought 90 days' intermittent imprisonment and three years' probation. At the time of the offence, there was a mandatory minimum sentence of 45 days' incarceration for each count of the indictable offences of sexual touching contrary to s. 151(a) of the Code. The court noted that sentences on the two offences could be served concurrently or consecutively. The court imposed a nine‑month period of imprisonment and two years' probation, to reflect the vulnerability of the two victims and the offender's use of inducements and coercions in the commission of the offences.

[149]     The Indigenous offender was before the court for sentencing after trial for an offence of sexual interference, contrary to s. 151 of the Code, against his 10-year-old stepdaughter with whom he was in a position of trust. At the time of the offence, the offender was approximately 27 years of age. The single incident which led to the conviction occurred when he went to lie down and cuddle the victim, and thereafter consisted of placing his hands down her shorts, putting his hand on her chest, and touching her buttocks. The offender did not have a related criminal record, and a number of relevant Gladue factors were engaged. He had a positive work record, a willingness to participate in counselling. The victim suffered significant emotional impact and had anger, as well as a significant amount of anxiety and depression. Her mother also was impacted by the offence and suffered from depression. At the time of the offence, there was a minimum 45‑day custodial sentence under s. 151. The offender was sentenced to a period of six months in jail followed by a period of probation for three years.

[150]     The non-Indigenous 24-year-old offender pled guilty to two counts of sexual interference contrary to s. 151 of the Code. The summary offences occurred within a three‑month period against two separate victims, both 15 years of age, and in the context of the offender's role as a youth leader at their church. The first offence involved the offender and the male victim K.B. viewing pornography together and then the victim, who had consumed alcohol, at the request of the offender, masturbated the offender and performed oral sex on him. The second offence occurred when the offender touched C.M., the second male victim's penis while C.M. was sleeping during an organized weekend church camping event. The offender told that victim about it the next morning. There was a full confession made by the offender and an intention to plead guilty to the charges, even before he was formally charged. The offender was just a few credits short of a Bachelor of Arts degree in sociology. His goal to be a youth pastor had evaporated because of the convictions. The accused offender did not have a criminal record. He was described as being an industrious young man and an active volunteer. The presentence report was very favourable. His risk assessment for sexual recidivism and sexual violence indicated a very low risk. The court noted the breach of the position of trust and the elements of grooming with respect to the two victims. There was a 14‑day minimum jail sentence for the summary offence under s. 151 at that time. The offence against C.M. was viewed as being at the low end of the range for that type of offence. The offender was sentenced to six months of jail involving the offence with K.B., and a one‑month consecutive jail sentence involving the offence with C.M., and three years of probation on each offence served on a concurrent basis.

[151]     At the time of the offence, the non-Indigenous offender was 20 years of age and the victim was 15 years of age. The offence occurred after the parties communicated on Facebook, and involved sexual intercourse approximately 12 times during a five-week period, while the female victim was away from her home visiting her grandparents. Crown had initially proceeded by way of indictment on charges of sexual assault, contrary to s. 271 of the Code, and sexual interference, contrary to s. 151 of the Code. The guilty plea was entered on the sexual interference count on the basis that the Crown was proceeding summarily. The offender had a long history of academic struggles and was assessed with a very significant number of deficits, which eventually led to him being assessed as qualifying for benefits that were available to persons with disabilities. He was assessed as having social and adaptive functioning "well below what would be considered to be 'normal' for a healthy, cognitively intact adult." It was noted that he presented as rather immature and impulsive and had difficulty regulating his emotions and showed poor social judgment. His interests were typical of a much younger person. He was able to obtain and hold minimum‑wage employment and to succeed within limits where supervisors were sympathetic and patient and gave him a specific task, but did not place time pressures upon him. The offender was assessed as being in the moderate to low range for risk to sexually reoffend, and the most salient risk factors being identified as abuse of alcohol and other substances, and interpersonal stress. The victim was very adversely affected by the experience, suffered significant psychiatric issues, lost a year of her high school education, was psychiatrically admitted to an Adolescent Psychiatric Unit for self harm, and was placed on medication and received ongoing counselling. The court rejected the argument that the 90‑day mandatory minimum sentence was grossly disproportionate and that the offender's s. 12 Charter rights were violated. Crown sought an 18‑month sentence, being the maximum available when Crown proceeded summarily. Defence sought a sentence in the lower range, which I take to be closer to the 90‑day mandatory minimum. Stressing denunciation and deterrence, but mindful of the mitigating circumstances and that there were substantive concerns about how the offender would fare in a prison situation, the offender was sentenced to nine months in a Provincial jail, followed by two years of probation.

[152]     The non-Indigenous offender was in his mid-40s at the time of committing the indictable offence of sexual interference, contrary to s. 151(a), in connection with the victim, being a four‑year‑old female child of family friends of the offender. The offence occurred during the night at the victim's family recreational residence, during which time the offender awoke the victim, transported her to the bathroom, removed the victim's diaper, and then penetrated her vagina and anus with his fingers, lubricated with hand soap, until the victim asked him to stop, at which point he told her not to say anything under threat of getting into trouble. The offender had no prior criminal record, was married with a family, owned a business, and was regarded as being a person of good character in the community. The B.C. Supreme Court sentencing justice determined there was an element of a breach of trust, and that offence was serious and invasive, resulting in serious and harmful effects upon the child victim and her parents and their family dynamics. The offender sought a conditional sentence order, which was rejected by the sentencing judge who noted the mandatory minimum sentence and found it prevented him from being able to access a valid and effective alternative sentence, and further found there were no sufficiently exceptional circumstances to justify a conditional sentence order. The BC Supreme Court imposed 14 months' imprisonment and a term of probation. The B.C. Court of Appeal upheld that sentence.

[153]     The following case authorities have been cited and relied upon by Defence:

[154]     By way of overview and analogy, Defence notes that the sentences imposed for the offence of sexual assault can span a range as wide as the scope of the conduct captured by the provision. Depending on the particular circumstances, sexual assaults involving minor touching or a stolen kiss may attract a suspended sentence or even a discharge. Conversely, in light of the type of conduct that falls at the higher end of the spectrum, when proceeded by way of indictment, the maximum sentence is imprisonment for 14 years.

[155]     The Accused submits that in the unique circumstances of this case, and in the absence of the mandatory minimum punishment prescribed by s. 151(b) of the Criminal Code, an appropriate sentence would range from a suspended sentence with a term of probation pursuant to s. 731, to an intermittent sentence of imprisonment pursuant to s. 732, or a conditional sentence of imprisonment pursuant to s. 742.1.

[156]     Defence further submits that the Accused's First Nations background, the repercussions of his upbringing, which includes historical and intergenerational trauma, the repercussions that FASD and SRD have had on his day‑to‑day life, the admirable involvement he has within his community, and the undying support he has from his community, should all be viewed as factors on sentence that can help support a non-custodial sentence or a custodial sentence that can be served in the community.

[157]     Furthermore, Defence submits that a 90‑day period of incarceration does not accord with the sentencing provisions of the Code. While s. 718.01 states that for offences involving abuse of a person under the age of 18 years, a court "shall give primary consideration to the objectives of denunciation and deterrence of such conduct", Defence says that this section must be read in accordance with other provisions of the Code that govern sentencing.

[158]     The Accused therefore relies upon s. 718.2(d) which states, "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances". Section 718.2 states, "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders . . . "

[159]     The Defence says that the fundamental principle of sentencing, set out in s. 718.1, is that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." The fundamental purpose of sentencing set out in s. 718 is to "contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society . . . "

[160]     Therefore, having regard to these principles, Defence submits that a lengthy period of incarceration would be inconsistent with the proportionality principle in s. 718.1 and, in particular, when considering the circumstances of the Accused and the offence, that such a sentence would not accord with the fundamental purpose of sentencing.

[161]     Thus, the Accused submits that the MMS of 90 days' imprisonment clearly meets the standard of gross disproportionality. The mandatory imposition of 90 days' imprisonment in these circumstances is a sentence which Canadians would find shocking and abhorrent.

[162]     Accordingly, Defence says that an appropriate sentence in these circumstances would be a suspended sentence, if not a discharge. In the alternative, a custodial sentence that is served in the community with carefully crafted conditions would be appropriate and would still respect the objectives of denunciation and deterrence.

[163]     I have also reviewed and summarized below a number of the cases upon which Defence is relying for their suggested sentencing range of the Accused. Many of these cases also form part of the Defence's s. 12 argument.

[164]     The non-Indigenous offender, who was 79 years old at the time of the offence and suffering from dementia and other significant health problems, with no prior criminal record and assessed as a low risk to reoffend, was sentenced to an eight‑month conditional sentence, followed by 18 months' probation for sexually assaulting a 10‑year‑old neighbour, contrary to s. 271(b) of the Code. The offender cupped his hands over the female victim's breasts and briefly touching her vagina on the top of her clothes. The Crown sought six to nine months of incarceration and three years of probation. Defence sought a suspended sentence. The Provincial Court declined to apply the mandatory minimum sentence of six months of imprisonment as being grossly disproportionate and contrary to s. 12 of the Charter, while taking into account the offender's health issues that would make his incarceration very difficult.

[165]     The non-Indigenous offender, who was 26 years of age, was diagnosed with Autism Spectrum Disorder, had social deficits and lacked empathy, was psychiatrically assessed of being incapable of living alone, and had no prior criminal record. He was before the court to be sentenced, after having pled guilty of sexual assault contrary to s. 271(a) of the Code. He challenged the minimum one-year sentence as a violation of his s. 12 Charter rights. The offence was a single incident of directly touching, without penetrating, the vagina of a six‑year‑old family member, while he was babysitting her. The offender was assessed as not presenting an imminent risk while being supervised. The serious offending behaviour, which included a breach of trust, had a significant impact on the victim. Crown sought a sentence in the range of 16 to 18 months of incarceration, while defence sought a suspended sentence or a 90‑day intermittent sentence. The court found that the appropriate range was between nine and 18 months of jail and that the one‑year mandatory minimum sentence was not grossly disproportionate and did not breach E.R.D.R.' s. 12 Charter rights. However, the court then concluded that it would be grossly disproportionate for reasonable foreseeable, less-serious offenders whose conduct would be captured by the mandatory minimum. Consequently, s. 271(a) was held by Justice Beames to violate s. 12 of the Charter. In her subsequent companion ruling with the neutral citation of R. v. E.R.D.R., 2016 BCSC 1759, Justice Beames then concluded that the violation is not justified under s. 1, observing at paragraph 15 that because sexual assault under s 271 captures a very wide range of conduct, committed in many ways by a wide range of people, there are reasonable alternatives which would avoid imposing disproportionate sentences on less blameworthy offenders. She further found that Crown had failed to prove minimal impairment under the proportionality test established by the Supreme Court of Canada in R. v. Nur. Ultimately, E.R.D.R. was sentenced to 12 months' imprisonment and three years of probation (see R. v. E.R.D.R. [2016] B.C.J. No. 2006; 2016 BCSC 1758).

[166]     The Manitoba Court of Appeal dealt with a Crown appeal from a 90‑day intermittent sentence imposed in 2016 for two counts, by way of indictment, for sexual interference, contrary to s. 151(a). At the time of the offences, there was a one‑year mandatory minimum sentence. Also, at the time of the offences, the non‑Indigenous offender was 23 years old, suffered from developmental delays associated lack of oxygen at birth, cerebral palsy, attention deficit hyperactivity disorder (ADHD), and autism spectrum disorder (ASD). The offences involved repeated abuse of the offender's seven‑ and nine‑year‑old nieces, while the offender was babysitting them in the family home that he shared with them. It involved touching and rubbing of their vaginas, both over and under clothes. The offences occurred during a period of some two years with respect to the eldest victim and some six months with respect to the youngest victim. There was no digital penetration of either of the girls, just touching and rubbing. Notwithstanding that the Crown was seeking a three‑year custodial sentence for the offender (who was subject to a mandatory minimum sentence of one year on each count), the sentencing judge ordered the 90‑day intermittent sentence. In doing so, the sentencing judge concluded that the offender's ASD was a major mitigating factor, and that a jail sentence would be a setback for the offender due to his vulnerabilities and the bad influences in the custodial setting. The offender was assessed as being in the low-moderate category, in terms of the risk of reoffending. In the initial sentencing, the Court of Queens Bench also found that the one‑year mandatory minimum sentence infringed ss. 9 and 12 of the Charter and was unconstitutional. The Court of Appeal held that the sentencing judge erred in the balancing of rehabilitation against deterrence, and further held that the record did not reasonably support the conclusions that the offender's moral blameworthiness was reduced because of the low level of his ASD and that the sexual offending was unrelated to that ASD condition. The Court of Appeal agreed that the one‑year mandatory minimum sentence was unconstitutional based on a reasonable hypothetical, such as that used in R. v. Hood. The Court of Appeal then imposed 22 months of imprisonment and three years of supervised probation.

[167]     The B.C. Court of Appeal dealt with a Crown appeal of a of a six‑month conditional sentence order imposed upon the non-Indigenous offender who pled guilty to two counts by way of indictment for sexual interference contrary to s. 151(a) of the Code. That offence had a mandatory minimum sentence of one year. At sentencing, the offender had successfully challenged the mandatory minimum sentence on the basis that it infringed s. 12 of the Charter and was not saved by s. 1 of the Charter. The sentencing judge of the Supreme Court found that the facts of the case constituted a strong "reasonable hypothetical" for why the mandatory minimum sentence can be grossly disproportionate when applied to a narrow range of offenders. Thus, the sentencing judge declared that the mandatory minimum was of no force or effect, which permitted the making of the conditional sentence order. At the time of the offences between June and October 2013, the offender was 22 years of age with no prior criminal record. He was significantly cognitively impaired with an IQ of 59 and diminished levels of cognitive and executive decision‑making abilities. The offender continued to live with a supportive mother and in a stable home environment. Each of the victims were 15 years of age and in Grade 9, all of which was known by the offender. Given the age gap, the "close in age" consensual sexual activity exception contained in s. 150.1(2.1) was not applicable. The offender and the victim L.N. were introduced online and met in person in late May 2013, at which time the victim L.N. told the offender she was 15 years of age. The offender picked L.N. up at school, drove around, and on the first occasion the offender inserted his hand into the victim's pants, under her underwear, and rubbed her clitoris and she performed fellatio upon him. They subsequently met and had unprotected vaginal sexual intercourse and oral sex on four or five occasions. The relationship ended in October 2013, at which point the victim L.N. disclosed the relationship to her mother, which was then reported to the police. The offences continued to have a significant emotional impact on the victim L.N. The offender also met the second victim, M.L., online in May of 2013. They then met in person in October 2013, at which point the offender became aware of that victim's age. Thereafter, over the course of a couple of days, they engaged in oral sex and on two occasions had vaginal intercourse, and at least once unprotected, before the victim M.L. broke off the relationship. The sentencing judge found that the appellant was intellectually much younger than his chronological age, was intellectually challenged, had psychological and cognitive issues, and was mentally and emotionally immature. The sentencing judge also found that incarceration would likely be harmful to the offender, given his impairments, lack of maturity and vulnerability. The sentencing justice gave primary consideration to denunciation and deterrence, and concluded that the appropriate range was between nine and 18 months of imprisonment, but that a proportionate sentence fell below that range because there was no violence, threats, coercion, inducements, or predatory behaviour on the offender's part. The majority of the Court of Appeal found that it was open to the sentencing judge on the evidence to conclude there was an established link between the offender's cognitive deficits and the offending conduct and hence his moral culpability, and further that prison would be harmful to the offender. The Court of Appeal further accepted the sentencing judge's view that there was a lack of need for specific deterrence, and the principles of deterrence and denunciation could be met by a conditional sentence. Therefore, the Court of Appeal upheld that a conditional sentence would be fit in this case, but that the sentencing judge erred in its duration, and then the B.C. Court of Appeal applied the analytical framework set out in R. v. Swaby and substituted a one‑year conditional sentence. In doing so, the Court of Appeal upheld the sentencing court's determination that the imposition of the mandatory minimum of 12 months of actual incarceration was grossly disproportionate for Scofield. Although his offences were extremely serious and would normally attract a term of imprisonment in excess of the one year mandatory minimum sentence, sending this offender to prison for one year, given his significant cognitive deficits, would outrage the standards of most informed Canadians. The mandatory minimum also failed on the reasonable hypothetical considered by the Court of Appeal in this decision.

[168]     The Alberta Court of Appeal held that the mandatory 12‑month minimum sentence for indictable sexual interference contrary to s. 151(a) was not grossly disproportionate to the circumstances in which the offender, a 21-year-old non‑Indigenous male, had sexual intercourse with a female victim, 13 years of age, in a public washroom, having only met her in person once before, and after two months of online communication. However, the Court of Appeal found gross disproportionality resulted upon consideration of reasonable, realistic, and foreseeable hypotheticals which, in the absence of a mandatory minimum, would warrant sentences ranging from a suspended sentence to a conditional sentence to a custodial sentence measured in days rather than months. The Court of Appeal upheld the sentencing judge's decision which imposed a six‑month sentence with three years' probation, based on the offender's social development, stalled at age 14 or 15, and his ongoing psychological issues due to complications relating to the removal of a brain tumour. The sentencing judge found greatly diminished moral blameworthiness based upon psychological evidence relating to the offender's disabilities. The one‑year mandatory minimum sentence was therefore appropriately found to be unconstitutional.

[169]     The British Columbia Court of Appeal upheld the Provincial Court sentence of a four‑month conditional sentence order and two years' probation for the 23‑year‑old non-Indigenous offender, without any prior criminal record, for a summary conviction, possession of child pornography, contrary to s. 163.1(4)(b) of the Code. The sentence was also upheld on the Crown's summary conviction appeal to the British Columbia Supreme Court. The Court of Appeal agreed that the gravity of the offence was high. However absent the mandatory minimum sentence of 90 days, service of the sentence in the community under strict conditions satisfied all the objectives and principles of sentencing and was a proportionate sentence. The offender experienced significant cognitive and intellectual impairment, as well as other mental health problems, which included auditory hallucinations. The sentencing judge found that the offender did not realize the gravity of his actions and his moral culpability was low. Two assessing psychologists expressed the opinion that the offender would not be able to tolerate incarceration, with one of them citing mental health detriments and the other expressing concerns about endangering the offender's rehabilitation progress, made by way of his new employment, which increased his social engagement. The Provincial Court sentencing judge was satisfied, on the balance of probabilities, that a 90‑day sentence would be grossly disproportionate. The Supreme Court justice on the summary appeal agreed that the offender's mental health and impaired cognition were causally related to his offending and were therefore mitigating factors. The Supreme Court justice upheld the Provincial Court's decision and declared s 163.1(4) to be of no force and effect, pursuant to s. 52 of the Constitution Act, and further found the mandatory minimum provision to be grossly disproportional on the basis of a reasonable hypothetical offender.

[170]     The Ontario Court of Justice sentenced a non-Indigenous offender, being 19 years old (at the time of the offence) and being a first time offender, on a summary conviction charge of invitation of sexual touching of a 14‑year‑old high school girlfriend contrary to s. 152 (b). The imposed sentence was a 12‑month suspended sentence, which included a condition for 25 hours of community service. The mandatory minimum under that section was 90 days' incarceration. The offence included "consensual and respectful and devoid of any exploitive" behaviour and with no suggestion of undue influence, persuasion, or manipulation on the part of the offender, but included sexual intercourse. The victim, who strongly opposed the police investigation and resulting charges, could not statutorily consent, because she and the offender were just outside of the close‑in‑age exception contained in s. 150.1(2.1). Their romantic relationship terminated, but the victim did not suffer any emotional stress nor feel victimized as a result of the offender's conduct and remained very supportive of the offender. The court received a very positive presentence report about the offender, detailing numerous prosocial attributes. In imposing the suspended sentence, the court determined that the imposition of the 90‑day mandatory minimum custodial sentence would be grossly disproportionate.

[171]     The first‑time non-Indigenous offender touched the victim and raised her skirt while seated beside her on a public bus. He was convicted of sexual assault contrary to s. 271(b) and sentenced to the mandatory minimum sentence of six months' imprisonment. The conviction was upheld on appeal, but the sentence was held by the Ontario Court of Appeal to be wholly disproportionate to the conduct at issue and was varied to a suspended sentence plus probation for two years.

[172]     The Ontario Court of Justice upheld the lower court's sentencing decision imposing a 45‑day conditional sentence followed by a term of probation, involving a sexual interference conviction contrary to s. 151(b), which carried a mandatory minimum sentence of incarceration of 90 days. The female victim was 14 years of age at the time of the offence and the non-Indigenous female offender was the then 21‑year‑old fiancée of the victim's 31-year-old male tutor and also her co-accused. The offence involved the offender and her fiancé kissing the victim on the forehead and cheeks, and sometimes hugging her and holding her hand. The trial judge concluded that the relationship was inappropriate and there was a "sexual aspect" to some of the kissing. The victim was adversely impacted and suffered significant stress arising from the offences. The male co-accused was sentenced to 90 days' mandatory minimum prison. The offender Drumonde had experienced a number health problems at a young age, depression and anxiety requiring three months as a voluntary in‑patient at a psychiatric institution starting at age 10. At age 13, she was the victim of a sexual assault. She underwent psychological care and gained keen insight into her inappropriate behaviour involving the victim. She was reported to be a low risk to reoffend sexually or generally. In its appellate decision, the Superior Court upheld the lower court's sentencing decision on the basis of the sentencing judge's reasonable hypotheticals and the offender's personal characteristics. It also upheld the finding that the mandatory minimum sentence in s. 151(b) infringed s. 12 of the Charter and the infringement was not saved by s. 1.

[173]     The Yukon Territorial Court dealt with the sentencing of a 21-year-old Aboriginal male offender with no prior criminal record, who had pled guilty to touching a person under the age of 16 years for a sexual purpose, contrary to s. 151(b) of the Code. The offender had sexual intercourse with the female victim who was 14 years of age. Crown sought the 90‑day mandatory minimum sentence. Defence sought a conditional sentence order of six months, which was precluded by s. 742.1(b) because of the mandatory minimum. Therefore, defence sought a ruling that the mandatory minimum offended s. 12 of the Charter. The court was presented with and accepted a number of applicable Gladue factors, noted some intellectual and communication deficits, the existence of attention deficit hyperactivity disorder, severe alcohol use disorder, and a major depressive disorder. The court noted the offender's positive work history, that he was a person who presented as significantly younger and less mature than his chronological age, who had gained insight into his actions, was remorseful, and had taken some steps and intended to take further steps needed to ensure that he was not a risk for future offences. Although assessed at a moderate to low risk to reoffend sexually, the court determined that the offence was out of character and that the offender was at a low end to reoffend. The court concluded that, based on a review of relevant case authorities, that a straight custodial term of nine to 10 months would be the appropriate starting point for the sentence. However, the court then considered the appropriateness of a conditional sentence and, based upon a number of factors, it concluded that a conditional sentence would not endanger the community and, if available, would be an appropriate sentence. The court concluded that its assessment of an appropriate sentence made it clear that the 90‑day mandatory minimum would not be grossly proportionate in relation to Pye, and then decided that the s. 12 analysis needed to be decided with reference to reasonable hypotheticals. On that basis, the court found that the mandatory minimum punishment of 90 days for the offence under s. 151(b) was grossly disproportionate and not saved by s. 1. Therefore, having concluded that the mandatory minimum sentence had no application to the offender, such that the barrier of a conditional sentence had been removed, the court then imposed a conditional sentence order of 12 months.

[174]     The 19‑year‑old non-Indigenous offender pled guilty to the summary offence of sexual assault contrary to s. 271(b), for engaging in one act of oral sex with a 13‑ or 14‑year‑old boy whom he knew from their local cricket club. The offender stopped the interaction because he knew it was wrong, given the age of the victim. The offender had no prior criminal record. There were a number of mitigating factors, including the offender taking responsibility, his great remorse and personal shame, and the ruin and humiliation and the shame brought upon his family. He was a low risk to reoffend. In this 2014 decision, the Crown had sought a six‑month period of incarceration, but did not oppose a conditional sentence which was apparently available. Defence counsel sought a conditional discharge, which was rejected by the Provincial Court judge. In doing so, the court gave primary consideration to denunciation and deterrence, and secondary status to restraint and rehabilitation. Therefore a 12‑month suspended sentence was imposed along with ancillary orders. The offence occurred prior to the introduction of the one‑year mandatory minimum sentence for sexual assault on a complainant under the age of 16 years.

[175]     The Nova Scotia Court of Appeal ruled on a Crown sentencing appeal relating to a 15‑month conditional sentence order and two years of probation for three indictable sexual offences committed by the non-Indigenous 37‑year‑old female offender. She was a former teacher to two male victims who were 17 and a 15 years of age, and thereby she was found to be in a position of trust with the victims at the time of the offences. Those offences were sexual luring, that being telecommunication with the 17‑year‑old victim for the purposes of sexual exploitation, (contra s. 172.1); inviting the 17‑year‑old victim to touch her for a sexual purpose (contra s. 153); sexual touching the 15‑year‑old victim (contra s. 153) by performing fellatio upon him; and a further sexual luring offence being telecommunication with the 15‑year‑old for the purposes of sexual exploitation (contra s. 172.1). Each of the offences carried a one‑year mandatory minimum sentence. The offender suffered from bipolar mood disorder and sought a finding of not being criminally responsible for the offences, which was rejected by the trial‑sentencing judge. The trial-sentencing judge found the one-year minimum to be grossly disproportionate for the offender personally, and therefore felt no need to test its constitutionality against a hypothetical offender. The Court of Appeal rejected that proposition and concluded that a one‑year sentence would be constitutional in the offender's circumstances. The Court of Appeal noted that such determination did not end the inquiry, and then proceeded to examine the constitutional challenge based upon other reasonable scenarios contemplated in R. v. Nur. The Court of Appeal concluded that the one-year mandatory minimums failed constitutional muster for all three offences and ruled all of the one-year minimum sentences be struck and rendered inoperative. The Court of Appeal noted that in s. 742.1(f), Parliament took the time to list offences for which a conditional sentence order was not intended. Of the many sex related offences in the Code, only sexual assault is listed in s. 742.1(f) as not being available for a conditional sentence. Therefore, a conditional sentence could be considered for the three offences being the subject of the appeal. Accordingly, the Court of Appeal then reviewed the trial-sentencing judge's analysis of the requirements for a conditional sentence order, including the finding that it did not endanger community safety, and therefore concluded that the 15‑month conditional sentence under appeal was punitive and adequately addressed deterrence and denunciation, and it was therefore upheld.

[176]     Some additional relevant case authorities have come to my attention, following the receipt of submissions from counsel, which I find to be useful in considering an appropriate range of sentences.

[177]      In R. v. Pete, 2019 BCCA 244 (CanLII), [2019] B.C.J. No. 1244 (BCCA), the British Columbia Court of Appeal varied a three‑year custodial sentence of an 18-year-old Aboriginal offender for sexually assaulting his 13-year-old female cousin. The victim awoke after midnight to find the offender in bed with her, kissing and touching her breasts and vagina over her clothes. The offender had broken into the victim's family home. The victim received bruises on her thighs and was significantly traumatized by the sexual assaults in her own home located within her own remote native community, in which she previously felt safe. In the course of the Court of Appeal's analysis, it was determined that the sentencing judge had not treated the offender as a first-time offender. The Court of Appeal substituted a two-year custodial sentence and two years' probation as being appropriate to give effect to the principles of deterrence and denunciation, and taking into account aggravating factors and the risk the offender posed to the community. The Court of Appeal also noted the positive work history and the operative and relevant Gladue factors, and confirmed the principles enunciated in R. v. Barton that there must be sufficient denunciation and deterrence of the excessive sexual violence experience by Indigenous women and girls. In its consideration of the range of sentences, the Court of Appeal noted at paragraph 88 that a range of sentences of between 90 days to two years less a day had been imposed in cases similar to the one before it, where the assaults involved kissing and touching or attempted touching, and where the offender did not use or threaten the use of a weapon, and where the assaults were not prolonged. This range was contrasted with the higher range set out in paragraph 87 of 30 months to four years in circumstances where the cases were considered more serious and involved preparation and planning, the use or threatened use of weapons, intercourse or digital penetration in the course of a protracted assault, and more than one break and enter on the same day.

[178]     In R. v. Alfred, 2019 BCSC, the 26-year-old Aboriginal offender was convicted of sexual assault contrary to s. 271, and sexual touching contrary to s. 151, in connection with a 13-year-old victim. Crown proceeded by way of indictment. The British Columbia Supreme Court entered a conditional stay of proceedings in respect of the s. 271 sexual assault charge on the basis of the Kienapple principle. The sexual offending included multiple incidences of sexual intercourse with the victim, whose age was known to the offender. Crown sought a three‑ to four-year incarcerative sentence and defence sought a non-incarcerative sentence. The court noted a number of operative and relevant Gladue factors, other personal factors including sexual abuse suffered by the offender as a preteen, a lack of a criminal record, and what was described as a "prosocial lifestyle" with a long‑term, stable employment record. The court also noted that a "rather disconcerting lack of understanding of responsibility" and a degree of "blaming the victim". Although noting the seriousness of the offence and the necessity for deterrence and denunciation, the court also adverted to the principle of proportionality and sought to impose a sentence that would not have a "destructive effect" upon the offender and the positive things in his life. Accordingly, the court imposed a nine‑month sentence with a 24‑month term of probation and ancillary orders.

[179]     In R. v. Chen, [2019] B.C.J. 1479, the non-Indigenous 28‑year‑old female offender was being sentenced in British Columbia Supreme Court after a jury conviction on one count of sexual interference with a 13-year-old victim, being an indictable offence contrary to s. 151 of the Code. The sentencing judge determined there was one incident of sexual intercourse and that, although the 13-year-old male was a willing participant, he could not legally consent due to his age. The mandatory minimum sentence of one year had been struck down by R. v. Scofield. Crown sought a one-year custodial sentence, plus a period of probation for one to two years to follow. Defence sought a non-custodial sentence. The sentencing judge noted an unusual set of facts and a "constellation of unique factors" for the offender, including personality traits and issues with mental health. By way of mitigation, the sentencing judge accepted the psychological assessment that the offender acted much younger than her chronological age and was almost childlike; in other words, she was "strikingly immature" and was "excessively naïve". The offender had no prior criminal record and was found to pose little to no risk of reoffending sexually. The offender's unique factors included having been the victim of regular serious childhood abuse and sexual abuse at the hands of her father, which had a profound impact on her. She had been diagnosed as suffering from major depressive disorder following the birth of her second child, and provisionally diagnosed as suffering from post traumatic stress disorder and other disorders. The Ministry of Children and Family Development became involved with the family as a result of this charge, such that the offender was significantly restricted in having contact with her two‑year‑old son for about a year and a half. Since being charged, the offender had engaged in much counselling and worked hard to address her personal issues. Because of the conviction, her choices of employment in her chosen fields of health care or early childhood education were lost. She faced significant immigration issues due to her status as a permanent resident of Canada, unless she received a jail sentence of less than six months. The sentencing judge determined that the offender's tragic upbringing significantly impacted her moral blameworthiness. The court determined that a period of incarceration would not serve the public interest or the interests of the offender because of her fragile mental state and the fact that the sentence would be served off of Vancouver Island, and therefore away from her home and separated from her family. Thus, it was held that any length of jail would be disproportionally harsh. Accordingly, the court sentenced her to a suspended sentence with two years of probation.

[180]     In R. v. Gumban, [2017] B.C.J. No. 1530, 2017 BCPC 226, our Provincial Court dealt with the sentencing of a 42‑year‑old male school custodian who pled guilty to the summary offence of invitation to sexual touching of a person under the age of 16, contrary to s. 152(b) of the Code. At the time of the offence, the mandatory minimum for the summary offence was 90 days. The offender made multiple approaches, spanning two days, to the 14‑year‑old male victim who shared the offender's ethnic background and dialect, first seeking phone contact, then showing the victim and his 15‑year‑old friends a picture of a naked male in his twenties with an erect penis, and asked questions about their interest in what was depicted and in seeing it, and finally, in a sexually provocative manner, directly asked the 14‑year‑old victim to engage in sexual activity with him in the school washroom. All approaches were rejected by the victim. The offender then cautioned the victim to tell no one of the sexual invitation. The victim continued to be negatively emotionally impacted by the offence. The offender was assessed as being a low risk for future sexual offending and would benefit from sexual offender treatment, with a specific focus on developing appropriate sexual boundaries. The offender challenged the mandatory minimum sentence as a violation of s. 12 of the Charter. Crown sought an 90‑day intermittent sentence jail, and defence argued for a lengthy suspended sentence. The court acceded to the Crown's position that primary consideration had to be given to punitive sentencing principles of deterrence and denunciation, given the statutory aggravating factors in s. 718.2(a)(ii.1), the breach of trust, and the targeted and deliberate behaviour towards the victim. The court then found that the 90‑day mandatory minimum was not grossly disproportionate. The court rejected defence's "reasonable hypotheticals" as being farfetched. Accordingly, the 90‑day intermittent sentence was imposed along with a 12‑month probation order.

[181]     In R. v. A.E.B., [2016] B.C.J. No. 824, the Provincial Court accepted a joint submission for a six‑month sentence of incarceration for a summary conviction of sexual assault contrary to s. 271 of the Criminal Code, following a guilty plea. The mandatory minimum sentence was 90 days. The victim was the 13‑year‑old daughter of the 53‑year‑old offender's partner. The Complainant had a learning disability. The offender groomed the victim for sexual activity that proceeded from intimate touching and eventually to stroking of the victim's breasts, touching outside of her vagina, and showering together. The sentencing range for similar offending behaviour by a person in a position of trust and authority was supported by R. v. Maxmenko, [2015] B.C.J. No. 2611, and R. v. G.J.R., 2014 BCPC 340.

[182]     THE SHERIFF: Order in court.

[183]     THE COURT: Please be seated, thank you.

[184]     THE CLERK: We are back on the record, Your Honour.

[185]     THE COURT: Thank you. Continuing.

[186]     The applicable sentencing principles for child abuse, both statutorily and in the common law, are well established. For example, R. v. D.(D.), 2002 CanLII 44915 (ONCA), and R. v. Woodward, 2011 ONCA 610 (CanLII), 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.

[187]     In R. v. K.R.J., 2016 SCC 31 (CanLII), Justice Karakatsanis, for the majority, noted at paragraph 83 that sexual offences against children have "persisted for centuries." Justice Brown (in dissent) goes on to discuss the societal impact of those offences:

[188]     Abella J.A. (as she then was), in R. v. Stuckless, 1998 CanLII 7143 (ONCA), described the impact of sexual abuse on a child:

[189]     Therefore, in cases of child sexual abuse, the objectives of denunciation and deterrence, and the need to separate sexual predators from society takes precedence (see R. v. E.S., 2017 BCCA 354 (CanLII) at paragraphs 53 and 58, citing Woodward and R. v. O.M., 2009 BCCA 287 (CanLII), at paragraph 60; G.F., (supra) at paragraph 49).

[190]     In R. v. R.E.L., 2010 BCCA 493 (CanLII), Hinkson J.A. (as he then was) states at paragraph 10:

[191]     As noted at the outset of these reasons, sentencing is a very highly individualized process.

[192]     In R. v. J.M. (supra), Judge J.T. Doulis very recently provided the following excellent summary of this individualized process at paragraphs 47 to 50:

[193]     The individualized approach 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:

[194]     Mr. Justice Romilly's decision in H.M.T.Q. v. T.P.C., 2000 BCSC 742 (CanLII), at paragraph 16, references many of these factors. I must instruct myself that some of these factors are either aggravating or mitigating, others, although relevant, are neither. They may bear examination when determining a fit sentence. An aggravating factor, either statutorily or judicially mandated, may prompt a court to impose a longer sentence than otherwise may be imposed. A mitigating factor may 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, paragraphs 35 to 36, and R. v. Prince, 2018 BCSC 987 (CanLII), at para. 72.

[195]     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 (CanLII), para. 45.

[196]     I turn now to a consideration of the following relevant factors in the Accused's sexual offending against the Complainant.

[197]     As noted in R. v. Vautour, 2016 BCCA 497, repetitive acts of sexual abuse increases the gravity of the offence and the moral culpability of the offender. The offence in this case involved one relatively brief incident.

[198]     In this case, the sexual touching involved both touching over clothes and under clothes, and an attempt to come into contact with the Complainant's vagina. It was highly invasive fondling, but did not result in digital penetration, oral sex, or vaginal intercourse, due significantly to the Complainant's resistance. It was highly intrusive of the Complainant's physical, psychological, and sexual integrity, which increases the gravity of the offence. It goes very significantly beyond the "stolen kiss" scenario in terms of severity on many fronts.

[199]     As noted above, this was a one‑time, brief incident, again in part due to the Complainant's resistance.

[200]     The abuse did not occur in the Complainant's home, with its expectation of safety and security. However, it did occur in a public place and at the Secondary School where the Complainant was also entitled to a high expectation of being safe and secure. Therefore, this is an aggravating circumstance.

[201]     I agree with Crown's submission that there was a presence of the aggravating factor of grooming by the Accused with respect to the young Complainant during the course of their online communication preceding the offence. In R. v. R.J.H., [2012] N.J. No. 269, the Newfoundland and Labrador Supreme Court ‑ Court of Appeal stated the following with respect to grooming:

[202]     The Complainant was age 13 and the Accused was 18 at the time of the offence. R. v. J.M. (supra) at paragraphs 78 to 88 reviews and considers the divergent judicial opinion as to whether or not the young age of a victim ought to be considered an aggravating factor. Divergence arises because some higher authorities note that it is already an essential element of the offence of sexual interference, and therefore it would be "double counting" to further aggravate its commission by reference to the statutory aggravating factor of being under 18 years of age, as set out in s. 718(2)(ii.1) of the Code. Because of the numerous divergent binding authorities, like the court in R. v. J.M., I am declining to find it to be further aggravating under s. 718(2)(a)(ii.1) that the Complainant was under 18 years of age at the time of the offence. However, in considering the circumstances regarding the overall gravity of the offence, I do note the significant age differences between the Complainant and the Accused. I further note that the Complainant was not prepubescent at the time of the offending, and hence this offence lacks the "repellent aspect of abuse of a small child" noted in R. v. Worthington at paragraph 41.

[203]     In this case, the Accused was not in a position of trust or authority, which was an existing aggravating factor in a number of the cases presented to this court for consideration. The fact that the Accused was an older student at the same school as the younger Complainant did not put him in that position of trust or authority with her. The absence of a position of trust or authority in this case is not a mitigating factor.

[204]     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 (CanLII), contemplates acts or threats of actual violence, coercion, or other ways of overcoming resistance. In this case, the Accused intercepted and physically grabbed the Complainant in the hallway of the Secondary School for the purposes of committing the sexual interference offence, which then necessitated physical resistance on the part of the Complainant. The level of gratuitous violence accompanying this offence was at the lower end, but that is not to say that it should not be considered to be aggravating, and I do so find it to be an aggravating factor.

[205]     As a general rule, a guilty plea is mitigating. 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 (see, for example, R. v. C.G.D., 2009 BCSC 40 (CanLII)). Here the Accused exercised his constitutional right to a trial. Therefore, there is no mitigating guilty plea.

[206]     An early guilty plea is generally considered a sign of remorse, meaning the offender regrets his wrongdoing. Here there is no guilty plea at all. Remorse requires a clear statement, by words and deeds, acknowledging the harm done (R. v. F.H.L., (supra)). 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. Therefore, 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.

[207]     Whereas genuine remorse may be a mitigating factor, the absence of remorse is not aggravating (see R. v. E.M.Q., 2015 BCSC 201 (CanLII) at paragraph 87). Still, the absence of remorse can also disentitle an accused to leniency which might otherwise have been extended.

[208]     Based upon my review of the Sentencing Reports before this court and also taking into account the submissions, I am of the view there is a lack of genuine remorse being expressed by the Accused. He continues to deny the offence. There is also an apparent lack of insight on the part of the Accused and its impact upon the Complainant. This is characterized in the Forensic Assessment Report where it is stated that the Accused's "personal insight is not especially keen and he does not articulate much to indicate a keen awareness about his risk for sexual offending toward the victim."

[209]     However, I do note that there is information before the court in the form of the Sentencing Reports that indicates that the Accused has expressed a willingness to accept and participate in whatever treatment, including counselling, that is ordered by the court, and to participate in any restorative justice measures that may be considered.

[210]     A prior criminal record can be an aggravating factor which the court may use to increase the severity of the sentence. It becomes less relevant if it is minor or dated or unrelated to the sentence for which the offender is being sentenced. 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, supra, the B.C. 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 that the offender has committed subsequent offences may be relevant to his character, the prospects for rehabilitation, and his risk of reoffending.

[211]     On the other hand, a lack of criminal record is not necessarily mitigating nor result in a reduced sentence. A lack of criminal record may be indicative of an offender's rehabilitative prospects. 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." However, he did accept that the lack of criminal record was indicative of the offender's rehabilitative prospects.

[212]     In this case, the Accused has no criminal record. Given all of the above, I treat it as a neutral factor, but one to be considered in determining a fit sentence and indicative of the Accused's rehabilitative prospects.

[213]     The fact that young people often lack maturity, parental supervision, and guidance diminish their level of responsibility and moral blameworthiness (see R. v. Kunzig, 2011 MBPC 81). Youthful offenders are also seen as having a greater chance of reforming and maturing over time. Generally, for youthful offenders, rehabilitation is a significant sentence principle and paramount, and jail should be a last resort (see R v Nakamura, 2012 BCSC 327).

[214]     Youthfulness as a mitigating factor on sentence is of primary importance for first time offenders. Youthfulness may become less important when a young adult has already had considerable experience in the criminal justice system (see R. v. Scott, 2015 ABCA 99).

[215]     R. v. Addley, 2012 ONSC 137, is authority for the proposition that generally judges should be reluctant to send young people to the penitentiary. In Addley, the Accused was 20 years old and described as young and impressionable. The court pointed out that if it imposed a two-year sentence, as the Crown sought, people who would then be in a position to influence the offender over the next two years of his life would be comprised of prisoners convicted of serious offences who were incarcerated in federal prison. The court viewed the offender as someone who could mature and develop into a productive and valued member of society, but that would be unlikely if the offender was placed in a federal prison.

[216]     The Accused in this case is youthful. He is apparently physically healthy but, as discussed in some depth above in my review of the Sentencing Reports, the Accused has a significant number of serious neurological impairments which arise from his pFASD. He functions mentally, cognitively, and emotionally at levels significantly below his chronological age. Accordingly, these factors must be considered as mitigating factors in that analysis as to whether they affect the Accused's moral blameworthiness. I will revisit that below.

[217]     It is clear, based upon my review of the Sentencing Reports, that Gladue factors are engaged for the Accused. In Eustache, the British Columbia Court of Appeal noted as reflected in Ipeelee, the Gladue factors are "mitigating in nature", it is also true that they are not "traditional" mitigating factors, such as the lack of a criminal record, a guilty plea, a good work history, or the countless other circumstances personal to an offender that may operate to moderate the nature and severity of a sentence. Gladue factors are unique in that they require a sentencing judge to consider the systemic and intergenerational effects of the collective experiences of Aboriginal peoples. I will revisit the required Gladue analysis below.

[218]     I accept the finding in the Forensic Assessment Report which concludes that the Accused is a moderate risk for sexual reoffending, which also presents a level of ongoing risk to the community. He has an apparent lack of appreciation of social cues which was pronounced in his offending behaviour against the Complainant. I further accept the conclusion reached in the Forensic Assessment Report that an aggravating factor for his level of risk will be related to the Accused's limited insight and awareness as a direct consequence of his pFASD. However, the Accused's interest in obtaining counselling and the prospect of continued interest in his Indigenous cultural traditions and the hope that he would internalize the value of these traditional cultural practices that may provide an "enduring buffer to his reoffending risk." There is nothing in the Sentencing Reports to suggest that the Accused is not manageable within the community.

[219]     Family support is mitigating as it usually promotes rehabilitation (see: R. v. Comishin, 1994 CanLII 2592 (BC CA), [1994] B.C.J. No. 944 (BCCA); R. v. Fudge, [2000] O.J. No 2780 (ONCA); R. v. Nelles, [2000] O.J. No. 3034 (ONCA); R. v. Thurairajah, 2008 ONCA 91).

[220]     Based upon the Sentencing Reports and the Letters of Support, I am satisfied that the Accused has a significant amount of support from his immediate and extended family and from his reserve community and, from Defence's submissions, that his Indigenous home community is well aware of his offending behaviour. I am also satisfied that the Accused has support within the broader community, as evidenced by some of the Letters of Support and the fact that the Accused has been able to maintain steady and gainful employment off of his home reserve, with accommodation being made by his employer to permit the Accused to be away from his employment to complete his initiation into the longhouse. I find these all to be mitigating factors.

[221]     I am satisfied, on the basis of the Sentencing Reports, the Letters of Support and the defence submissions, that this is not the type of situation that was identified in R. v. Pouce Coupe, 2014 BCCA 255, where the offender's family and community professed the offender's innocence. The Court of Appeal then determined that a shorter jail sentence with a restorative justice plan would not be successful, in light of the fact that the community and the family did not accept that the offender was guilty, and hence rehabilitation may be negatively impacted.

[222]     A supportive family background is not an aggravating factor (see R. v. Cormier, [1974] N.S.J. No 243 (NSCA)).

[223]     According to the Presentence Report, the Accused has been on reporting conditions since July 2018. It is acknowledged that there was an interruption in the Accused's ability to regularly report to the bail supervisor, due to his participation in the longhouse season from November 2018 to April 2019. Based on the submissions, I do not understand there is a suggestion that the Accused has been non‑compliant with his bail conditions, nor do I understand that it is being submitted by Defence that the conditions are overly restrictive.

[224]     In R. v. Li, 2017 BCCA 444, the British Columbia Court of Appeal explains that although "people who are on bail are expected to behave themselves", a flexible approach must be taken with respect to the impact strict or stringent bail conditions can have on the determination of a fit sentence, and whether restrictive conditions should be treated as a mitigating factor is a matter of discretion. The focus of the flexible approach is the degree to which the objectives of sentencing have already been accomplished through the restrictive conditions.

[225]     I am treating the existence of the Accused's bail conditions as being neutral.

[226]     Based on all of the information before me, including the Victim Impact Statement and the Presentence report, as well as the evidence of the Complainant's grandparents, I am satisfied that the impact of the Accused's offending behaviour on the Complainant has been very significant and hence this is a highly‑aggravating factor.

[227]     I accept the Accused's high level of engagement in his cultural traditions within the longhouse, his prosocial lifestyle evidenced by his sports, his mentorship of young soccer players, his steady employment, and also his willingness to participate in counselling to be further mitigating factors.

[228]     As noted above under the heading "Sentencing Considerations for Aboriginal Offenders and Gladue Principles", I must now consider what combination of systemic or background factors contributed to or impacted on the Accused's culpability for this particular offence. In doing so, I must follow the three-step process outlined in R. v. Gladue, which is also described above.

[229]     As noted above under the heading "Gladue Report", that report clearly sets out the applicable and relevant common unique systemic or background factors that are referenced in R. v. Gladue, and which figure prominently in the causation of crime by Aboriginal offenders and contribute to their higher rates of incarceration. To these must be added colonization factors, including the Indian Residential School System, the Indian Day School System, child removal, and displacement from families, and the intergenerational effects.

[230]     I am able to conclude that all of these unique systemic and background factors are applicable in this case, based upon my detailed review of the Gladue Report, the Presentence Report, and the Letters of Support

[231]     Again, as noted above, the Gladue Report details the systemic and related factors that are apparent in the Accused's personal circumstances, including loss of family, community, and culture; community fragmentation; biological family's substance abuse and trauma.

[232]     In the Accused's early childhood and adolescence, he experienced a loss of connection and abandonment from his biological mother and his biological father and his adopted sister. He also witnessed his foster brother inappropriately sexually touching other foster and adopted foster and adopted siblings. His adoptive parents and grandparents suffered through the Indian Residential School System and the Indian Day School System.

[233]     The Sentencing Reports, the Behavioural Conditions Reports, and Letters of Support also touch upon other personal Gladue factors impacting the Accused, including what may be characterized as racially‑based conflict and bullying at school.

[234]     Based upon all of the foregoing, I conclude that substantially all of these Gladue factors are directly tied into and contributed to or impacted on this Accused's culpability for the this particular offence. Therefore, they must be taken into account in arriving at a sentence that is informed, just, and appropriate in the circumstances.

[235]     The Forensic Assessment Report and the Behavioural Conditions Reports detail the Accused's pFASD condition and a number of his cognitive impairments. The issue that this court must address is the effect, if any, that that these diagnosed conditions have on the Accused's moral blameworthiness in connection with the commission of this sexual interference offence, and what mitigating impact, if any, will they have on his sentencing.

[236]     In R. v. J.E.D., a decision of the Manitoba Court of Appeal, Madam Justice Steel (dissenting in part) reviewed R. v. Friesen, 2016 MBCA 50, R. v. Okemow, 2017 MBCA, and R. v. Ramsay, supra, and then provided the following useful summary which addresses this issue:

[237]     It is noteworthy that the majority of the court in J.E.D. disagreed with Steel J.A.'s comments in the last sentence of paragraph 75, noting that in sentencing sex offenders of children, Parliament has, in s. 718.01 of the Code, mandated that primary consideration be given to the sentencing objectives of denunciation and deterrence, regardless of the cognitive limitations of the offender (see paragraph136). The analysis of Steel, J.A.'s decision in J.E.D. was referenced with approval by the British Columbia Court of Appeal in both R. v. Scofield and R. v. Williams.

[238]     In this case, the Forensic Assessment Report clearly identifies and confirms the previous assessments and diagnoses of the Accused set out in the Behavioural Conditions Reports. The Forensic Assessment Report also details a number of other cognitive issues suffered by the Accused and his risk factors or markers for sexual reoffending.

[239]     I respectfully disagree with Crown's submission that there is a complete dearth of relevant current information regarding the mitigating effects of the Accused's pFASD diagnosis, or any current professional diagnostic information to explain the nature or degree of the symptoms as experienced by the Accused at present.

[240]     Crown appears to be proceeding on the premise that significant neurocognitive impairments flowing from pFASD will improve with time or with maturity. That premise is not supported in any fashion by the Forensic Assessment Report. In fact, Dr. Dugbartey reviews the Accused's cognitive capacity and the results of the psychometric screening, his functional illiteracy, and his limited social communication skills, and notes that "these kinds of difficulties do not spontaneously remit." As noted above, in the Behavioural Conditions Reports, Dr. Down notes that the pFASD conditions "establishes a chronic medical health impairment and has life time implications for the [Accused's] health, mental health, education, vocation and requires lifetime adaptations" [emphasis added]. I accept, from these Behavioural Reports and from the Forensic Assessment Report, that these are continuing lifetime problems for the Accused and need to be continuously assessed, treated, and managed, but are not subject to being cured.

[241]     I also accept that the Accused will require specialized treatment with significant modifications to traditionally delivered programs in a group format. Further, I do accept that there is limited information before the court or any updated information about the ongoing assessment and the intervention in mental health and behavioural management received by the Accused since it was recommended in the November 10, 2006, letter forming part of the Behavioural Conditions Reports.

[242]     However, in determining whether the Accused's mental disorder affects his moral culpability in this offence, it is my view that reliance can be placed upon the Accused's identified risk factors for sexually reoffending that are described in the Forensic Assessment Report. In my view, those various risk factors including: his lack of appreciation of social cues; his lack of ability to realize how the Complainant victim was (or could be) disturbed by his actions; his limited insightful awareness, which is identified as a direct consequence of his FASD; and his low average intellectual ability, can logically be accepted as contributing factors to the commission of the offence. I am also satisfied that in this case there is sufficient evidence to conclude that the cognitive deficits of the Accused are of such a magnitude to be considered as reducing the Accused's moral blameworthiness to a level that is commensurate with the magnitude of those deficits. It is significant that Dr. Dugbartey noted that the Accused was well-suited for admission into and continuing support by the Personal Supports Initiative (PSI) to help with his "adaptive functioning in the community at large." This helps demonstrate that the Accused has a significant and continuing level of deficits which were present at the time of the offence and contributed to it.

[243]     Again, I am mindful of the comments of Dr. Down, as noted above and reported in the Gladue Report, about the risks of the jail sentence system for persons with an FASD diagnosis, such as the Accused, who are easily influenced and may pick up criminal behaviour in that environment.

[244]     Therefore, these factors must be taken into account by way of mitigation in determining a fit sentence for the Accused.

[245]     Not surprisingly, the authorities provided by counsel are different in some respects as the case before me. Each can be distinguished by the individual and sometimes very unusual facts, and on occasion by the questions of law that are engaged and whether or not Crown has proceeded by way of indictment or summarily. There are often significant differences in the aggravating and mitigating circumstances, including the ages of the victims, the seriousness of the offending, the duration of the offending, and the impact on the victims. Some cases engage significant Gladue factors and issues of reduced blameworthiness due to mental illness or cognitive impairment, while others do not.

[246]     As I have noted above, both the Crown and defence have provided case law in support of their respective positions on sentence. I have considered these authorities, along with the other authorities that I have found helpful. I have read each of these cases and I have considered them in coming to a determination of the sentence. I may not have necessarily referred to each of these cases, but the principles outlined in them and the guidance that they provide with respect to a fit sentence in this case have been taken into account. I have also considered and referred to the cases referenced in those decisions presented by counsel.

[247]     I am mindful of Mr. Justice LeBel's caution (at paragraph 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 principles of parity enshrined in the Code.

[248]     I also find Justice Schultes' comments in R. v. Rosario, 2018 BCSC 2483 (CanLII) apposite:

[249]     I agree with Crown's observation in submissions that factors which tend to result in sentences of one year or more years of imprisonment include circumstances where there have been multiple incidences of sexual touching, where the touching has included intercourse or digital penetration, where the sexual activity is prolonged, where there is accompanying violence or coercion, where there is a pattern of grooming or premeditation, where there is a breach of trust, where there has been a significant impact on the victim, or where the offender has a related criminal record.

[250]     I further agree with Crown's additional submission that sentences tend to be in the range of five to 12 months in cases where the offender has pled guilty, where the offender has accepted responsibility and is remorseful, where the sexual activity involves brief or spontaneous touching over clothes, where the offender has taken steps to address underlying causes of his offending conduct, where the offender is Aboriginal, where the offender is young, and where the offender has no criminal record.

[251]     I have carefully considered all the mitigating factors, aggravating factors, Gladue factors, cognitive impairment factors, and those factors that impact on blameworthiness and the whole of the circumstances in reaching my conclusion about an appropriate range of sentence for this Accused. I have done so unfettered by the applicable MMS.

[252]     With respect to the Crown authorities that I have reviewed and summarized above, I find the following to be of the most assistance in the required analysis to consider an appropriate range: R. v. B.J.C.; R. v. Hayes; R. v. R.R.G.S.; R. v. K.L.L.; R. v. Humchitt; R. v. Bargiacchi; R. v. Cyr.

[253]     With respect to the Defence authorities that I have reviewed and summarized above, I find the following to be of the most assistance in the required analysis to consider an appropriate range: R. v. C.V.E.B.; R. v. E.R.D.R.; R. v. Scofield; R. v. Ford; R. v. Swaby; R. v. J.G.; R. v. Hilan; R. v. Drumonde; R. v. Pye; R. v. B.; R. v. Hood.

[254]     With respect to other authorities that I have reviewed and summarized above, I find the following to be of similar assistance in conducting the analysis of an appropriate range: R. v. Pete; R. v. Alfred; R. v. Chen; R. v. Gumban; R. v. A.E.B.

[255]     On the whole of the circumstances of this case, and having full regard to the applicable sentencing purposes and principles noted above in these reasons, I find that Crown's suggested range of a sentence for this Accused of between six to eight months of incarceration to be too high. That range would be supported by more egregious circumstances, such as are found in R. v. D'Argis, which are not present in this case.

[256]     Similarly, on the whole of the circumstances of this case and having full regard to the applicable sentencing purposes and principles, and based upon my review of the above‑noted principles and requirements of discharges and suspended sentences, I find that Defence's submissions that there be a discharge or a suspended sentence for the Accused not to be appropriate, especially in light of the applicable sentencing principles of denunciation and deterrence.

[257]     Based upon the whole of the circumstances and having regard to the applicable sentencing purposes and principles, and based upon my analysis set out above in these reasons, I find that the range of an appropriate proportionate sentence to be a custodial sentence of between two months and five months, with a lengthy period of probation of between two and three years.

[258]     I also find that, having regard to all of the applicable factors and circumstances of this case detailed above, that this court should be considering the use of a conditional sentence order. This is supported by my review and analysis set out above about the principles and requirements for the use of conditional sentences, and based upon my analysis of the number of the authorities that I have reviewed, and in particular R. v. Scofield. I am satisfied that a conditional sentence order should be part of a fit sentence.

[259]     In reaching that conclusion, I have specifically considered many of the Accused's exceptional circumstances, including his reduced moral blameworthiness due to his pFASD and the resulting deficits, and the appropriate and also resulting from the applicable Gladue factors. I am also satisfied, taking all of the above into consideration, that the four requirements of a conditional sentence order are met (other than the existence of the MMS). Specifically, I am satisfied that a sentence served in the community would not endanger the safety of the community with the imposition of appropriate conditions.

[260]     Also, I am further convinced that a conditional sentence order will minimize the negative impact of the jail system upon the Accused, as was identified by Dr. Down and reported to the court in the Gladue Report.

[261]     I am further convinced that the conditional sentence order will permit the Accused to continue to receive the significant benefit of his cultural engagement, the support of his family and his community, and to be able to continue his employment, while at the same time to receive sex offender treatment as outlined in the Presentence Report.

[262]     Therefore, unfettered by the MMS, and in all of the circumstances, I would sentence the Accused to a five‑month conditional sentence order and 30 months of probation.

[263]     This, of course, means that there will now have to be a consideration by this court of the s. 12 Charter arguments, and a consideration of whether or not the 90‑day MMS is grossly disproportionate on the basis of the individualized or particularized inquiry, or alternatively on the basis of the reasonable hypothetical or generalized inquiry.

[264]     We will now move to that part of the sentencing process and receive the necessary further submissions of the parties.

[265]     That concludes my reasons at this stage.