IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On March 19, 2019, after a four day trial, I convicted P.M.M. of Counts 1 and 2 on Information 25135-1 which charged him with sexual interference of and invitation to sexual touching to his 13-year-old niece, T.T. The offences occurred on July 9, 2018, in the Gitxsan village of [omitted for publication], when T.T. was at home alone babysitting her younger brother.

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

[3]           This matter came before me for a sentencing hearing on October 8, 2019. At that time, I heard submissions of counsel and received their authorities. I also received into evidence the following exhibits:

[4]           Following his counsel’s sentencing submissions B.J. and P.M.M. addressed the Court. At the conclusion of the sentencing hearing I reserved my decision; these are my reasons for sentence.

[5]           The circumstances of the offence are set out in my reasons for judgment: R v. P.M.M., 2019 BCPC 92 (CanLII). In July 2018, P.M.M. and his spouse, B.J., were residing in [omitted for publication] BC. In the spring of 2018, they shared a communal residence with F.J. and L.J. and F.J.’s wife, D.J., and their children. During this period, P.M.M. and B.J. shared various household and child care responsibilities with F.J. and D.J. T.T. then 13 years old, was one of those children. T.T. considered P.M.M. and B.J. as her aunt and uncle.

[6]           T.T. says on July 9, 2018, at around 10 o’clockish she was laying on the living room couch watching a television show. She was babysitting her youngest sibling, M.J., who was only two. T.T. and M.J. were the only people in the house. M.J. was still sleeping. P.M.M. walked into the house and came upstairs. He sat on T.T.’s stomach while she was laying on the couch. P.M.M. started touching her face and telling her how pretty she was. He tried to kiss T.T., but she looked away. He surmised T.T. didn’t know how to kiss and told her he would teach her. She declined the offer. When T.T. looked away P.M.M. kissed her on the cheek. He then said to T.T., “I could also teach you how to have sex without having sex.” This made her really uncomfortable, but she said nothing. P.M.M. grabbed T.T.’s hand and felt her palms. He asked her what she was nervous about. Although she was nervous, she said “nothing [she] was not nervous about anything.” P.M.M. told T.T. he was going to Terrace and invited her to accompany him. He told her she could bring her best friend and offered her some alcohol and joints. T.T. told him she didn’t smoke or drink. P.M.M. repeated his offer. Eventually he left the house and drove off. T.T. ran to T.B.’s home upset and crying. T.B. returned with T.T. to the J. residence and remained with her until F.J. and D.J. returned home.

[7]           P.M.M. was 61 years old at the time of the offence; he is now 63. He was born and raised in Telegraph Creek and is a member of the [omitted for publication] First Nations. He is the father of eight children, including five adult children from his first marriage and three from his current partner, B.J.: W., age 10, P. Jr., 9, and W., 5. P.M.M. and B.J. have been in a common-law relationship for 11 years.

[8]           For most of his adult life P.M.M. was a commercial truck driver in the logging and mining industries. Two years ago he sustained serious injuries in an accident which forced him to stop working.

[9]           In 2018, P.M.M. suffered a number of minor heart attacks for which he underwent surgery in Kelowna, BC on May 24, 2018. P.M.M. claims to have multiple current and historical health issues, including:

[10]        P.M.M. has provided no independent medical evidence in support of his professed health issues. In fact, he refused to give PO Lukyn permission to contact his mother to verify his claim of being shot in the head and suffering amnesia.

[11]        At one time P.M.M. was an alcoholic but has been sober since either 1985 or 1989. (At trial he testified he had been sober since 1989; in his interview with PO Lukyn, P.M.M. states he was sober since 1985 when he attended the Round Lake Treatment Centre for substance misuse.)

[12]        P.M.M. has a dated criminal record. On December 14, 1984, P.M.M. was convicted of driving with more than 80 mgs of alcohol in 100 mml of blood. On September 23, 1986, and again on January 22, 1997, P.M.M. was convicted of assault for which he was sentenced to 12 months’ Probation on each charge. One of these convictions related to an incident of domestic violence against his former spouse.

[13]        Upon convicting P.M.M. on March 19, 2019, at the request of the defence, I ordered a Pre-Sentence Report with a Gladue component from Smithers Community Corrections. The report was due in Court on May 14, 2019. Probation Officer Graham Lindsay scheduled a pre-sentence report interview with P.M.M. on April 23, 2019. P.M.M. attended Community Corrections on that date but refused to participate in the interview and left PO Lindsay’s office. Instead, P.M.M. began to pepper various justice system participants, including the Crown, Probation Officer, and Judge with what I had described in para. 14 of P.M.M., 2019 BCPC 170, as “OPCA correspondence” steeped in the lingua franca of what Associate Chief Justice Rooke of the Alberta Court of Queen’s Bench in Meads v. Meads, dubbed the “Organized Pseudolegal Commercial Argument litigants” (“OPCA litigants”). This correspondence included:

[14]        P.M.M. claims he sent this OPCA correspondence as a result of his heart medications becoming “unbalanced.”

[15]        On July 30, 2019, again at P.M.M.’s request, I re-ordered the Pre-Sentence Report, which Probation Officer H. Lukyn prepared and filed on August 30, 2019. In the Pre-Sentence report, PO Lukyn states at the time of the offence, both P.M.M. and B.J. were “dealing with health complications” and “by both accounts [P.M.M.] was suffering from sexual dysfunction due to heart issues.” In para. 6 of R. v. P.M.M., 2019 BCPC 92 (CanLII), I noted:

[16]        PO Lukyn states on Page 5:

[17]        P.M.M. did not undergo a psychiatric risk assessment. He continues to maintain his innocence, therefore his attitude and understanding of the offence cannot be assessed. In his Presentence Report, PO Lukyn states on page 4:

[18]        P.M.M. is a member of the [omitted for publication] First Nations. His mother was of [omitted for publication] descent, his father, Japanese. P.M.M. was raised in Telegraph Creek. He learned to fish and hunt while growing up. His family has a trap line in the Dease Lake area. P.M.M. told PO Lukyn that he did engage in cultural traditions, such as the sweat lodge, until his heart condition forced him to discontinue this practice.

[19]        The principles espoused in R. v. Gladue, 1999 CanLII 679 (CanLII), as explained in R. v. Ipeelee, 2012 SCC 13, (CanLII) are relevant in this case. In considering a fit sentence, the Supreme Court of Canada has directed the Court to take judicial notice of the historical background of Canada's aboriginal people, such as colonialism, displacement, and residential schools, and how it continues to translate into all manner of societal impoverishment such as on the educational front, income and employment disadvantages, and higher rates of substance abuse, suicide, and higher levels of incarceration.

[20]        In this case, throughout his young life, P.M.M. struggled with substance abuse. To his credit, he has been sober since 1985. Despite his past difficulties, P.M.M. has maintained a pro-social lifestyle. He has a close relationship with his mother and his step-father until his step-father’s death last year. He also has a close and loving relationship with all his children and grandchildren. P.M.M. has been in a 23-year relationship with B.J., who is his current spouse and mother of his three youngest children. B.J. has been supportive of P.M.M. throughout these proceedings.

[21]        P.M.M. has graduated from grade 12. He has a long work history for which he is justifiably proud. P.M.M.’s long-term career as commercial truck driver ended in 2017, when he was severely injured in a logging truck accident.

[22]        The [omitted for publication] offer a restorative justice initiative Ku’We’Gahn Justice Program, which is modelled on sentencing circles. These alternatives, however, require the offender to take responsibility for the offence, which P.M.M. has not done.

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

[24]        T.T. has provided a Victim Impact Statement which was entered as Exhibit 3 at the sentencing hearing. She states:

[25]        P.M.M. is convicted under Information 25135-1 with sexual interference and invitation to sexual touching to a person under the age of 16 years, pursuant to ss. 151(b) and 152(b), of the Criminal Code. The Crown proceeded summarily. The relevant sections in force on July 9, 2018, are set out below [emphasis added]:

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

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

[28]        Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. It includes two components: (a) the harm or likely harm to the victim; and (b) the harm or likely harm to society and its values: R. v. Lacasse, 2015 SCC 64 (CanLII), at para. 130.

[29]        In R. v. Ipeelee, 2012 SCC 13 (CanLII), LeBel, J., states in para. 37, in part:

[30]        Section 718.01 of the Code directs the Court to give primary consideration to deterrence and denunciation when sentencing for any offence involving abuse of a person under 18: In R. v. R.J.B., 2016 BCCA 428 (CanLII) at para. 29, Justice Bruce held the principle set out in section 718.01 is a codification of a pre-existing sentencing principle. In R. v. M.P.S., 2017 BCCA 397 (CanLII), Stromberg-Stein, J.A., for the majority of the B.C. Court of Appeal, cites with approval the following statement from Justice Abella (as she then was) in R. v. Stuckless, 1998 CanLII 7143 (ON CA):

[31]        Other important sentencing considerations are set out in section 718.2, which states a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Today, the Criminal Code legislates the following factors as aggravating: (a) Section 718.2(a)(ii.1), the young age of the victims; (b) Section 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) whether the offence had a significant impact on the victim.

[32]        Section 718.2(b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. In Ipeelee, the Supreme Court held the “parity principle . . . means that any disparity between sanctions for different offenders needs to be justified.”

[33]        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. 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.

[34]        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).

[35]        In R. v. G.F., 2018, BCCA 339 (CanLII) the Court of Appeal, referencing in R. v. D.G., 2014 BCCA 84 (CanLII), held in cases involving offences against vulnerable children denunciation and deterrence are the main considerations. R. v. Callow, 2019 BCSC 242 (CanLII), Madam Justice Dillon states at paras. 31 [Citations omitted]:

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

[37]        Section 718.04 was a legislative response to the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls which states in its introduction [footnotes and citations omitted]:

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

[39]        In R. v. Barton, 2019 SCR 33 (CanLII), at paras 198-201, the Supreme Court of Canada recognizes that Indigenous females have been historically victimized, continue as victims of cultural and social biases that manifest in the justice system, and have endured high rates of sexual violence.

[40]        The Defence further argues that s. 718.04 is directed towards offenders of European extraction. I note, however, in R. v. Pete, 2019 BCCA 244 (CanLII), the BC Court of Appeal recognized the need to acknowledge, denounce and deter the excessive sexual violence experienced by Indigenous females, as well Mr. Pete’s status as a first-time offender and the relevant Gladue factors. Mr. Pete was convicted of breaking and entering a dwelling house on December 1, 2015 and sexually assaulting his 13-year-old cousin. Both the offender and the victim were Indigenous residents of a small northern British Columbia, near the Yukon border. In the early hours of December 1, 2015, Mr. Pete broke into the victim’s home, and began sexually touching her while she was sleeping. He left when she awoke and threatened to call her father or brother.

[41]        In this matter, the Crown has proceeded summarily. In 2018 an offence of sexual interference charged under s. 151 and an offence of invitation to sexual touching charged under s. 152, where the Crown has proceeded summarily attracted a maximum term of imprisonment of not more than two years less a day and a minimum term of imprisonment of 90 days.

[42]        Recently, in R. v. Scofield, 2019 BCCA 3 (CanLII) and its companion case, R. v. Horswill, 2019 BCCA 2 (CanLII), the BC Court of Appeal held the mandatory minimum sentence set out in s. 151(a) was unconstitutional and of no force and effect. In R. v. B.J.T., 2019 ONCA 694, the Ontario Court of Appeal upheld the trial judge’s finding the mandatory minimum for sexual interference charged under s. 151(a) of the Criminal Code is unconstitutional violating section 12 of the Canadian Charter of Rights and Freedoms (and is not saved by section 1). Feldman, JA, writing for the court, noted the constitutionality of the mandatory minimum for sexual interference under s. 151(a) of the Criminal Code has recently been considered by five other courts of appeal across the country.

[43]        The Crown submits there are no authorities binding on this Court which have struck down the statutory minimum sentences set out in ss. 151(b) and 152 (b) of the Criminal Code. The Supreme Court of Canada has made it clear in R. v. Lloyd, 2016 SCC 13 (CanLII), that only superior court judges of inherent jurisdiction and courts with statutory authority are empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982. Provincial Court sentencing judges are able to determine the constitutional validity of the mandatory minimum sentence in the course of determining whether the provision applied in the case before the court. A ruling by a provincial court judge that the mandatory minimum sentences set out in ss. 151(b) or 152(b) offends the Constitution, can only be persuasive, it is not binding.

[44]        There are a number of cases where the Defence has challenged the constitutionality of the mandatory minimum sentence in sexual offences where the Crown has proceeded summarily, with varying degrees of success: see R. v. Gumban, 2017 BCPC 226 (CanLII), R. v. C.V.E.B., 2019 BCPC 118 (CanLII), Her Majesty the Queen and R.A., 2019 NWTTC 10 (CanLII), and R. v. Drummonde, 2019 ONSC 1005 (CanLII), and R. v. Pye, 2019, YKTC 21 (CanLII). In this case the Defence does not argue the 90-day mandatory minimum sentence would be grossly disproportionate in relation to P.M.M. or in its application to reasonably foreseeable hypotheticals in violation of s. 12 of the Charter. Nevertheless, these cases are instructive in that they underscore the broad range of conduct captured by ss. 151 and 152 and the impact on the appropriate range of sentence.

[45]        Section 718.2(e) imposes on a sentencing judge a statutory duty to consider the unique systemic and background factors which may have played a part in bringing a particular offender before the Court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s particular Indigenous heritage. Gladue and Ipeelee establish the principles and framework for sentencing Indigenous offenders. The offender is not required to establish a causal link between background factors and the commission of the offence before being entitled to have those factors considered by the sentence judge. Judges may take judicial notice of the broad systemic and background factors affecting Indigenous people generally and case-specific information from the offender and the presentence reports.

[46]        In Ipeelee the Court described the systemic and background factors are mitigating in nature. In G.F., Justice Goepel for the appellate court held at para. 41:

[47]        P.M.M. is a member of the [omitted for publication] First Nations and therefore the principles relating to sentencing Indigenous offenders as set out in s. 718.2(e) apply.

[48]        In R. v. S.P.S., 2019 BCPC 158 (CanLII), the Indigenous offender was convicted of sexual interference of his 14-year-old niece. In his discussion of the impact of Gladue factors on the sentencing analysis, Judge Gouge cites from the Ontario Court of Appeal decision in R. v. F.L., 2018 ONCA 83 (CanLII), wherein Justice Epstein states:

[49]        In S.P.S., Judge Gouge declined to impose a lesser sentence on account of the Gladue factors in the case before him. In concluding a discount was not justified, Judge Gouge reasoned:

[50]        I recognize the overrepresentation of Indigenous peoples in Canadian prisons militates against imposing lengthy custodial sentences on Indigenous offenders. I accept that P.M.M., like many Indigenous offenders who come before this Court, has been disproportionately affected by the history of colonialism and the subsequent intergenerational trauma experienced by Indigenous persons. In the past P.M.M. abused alcohol; he attracted a criminal record while still a young man, he was estranged from his biological father since childhood, and sexually abused by his grandfather. I am satisfied that those factors, both systemic within society and specific to P.M.M. may have played a role in his criminal behaviour. In my view the Gladue factors attributable to P.M.M. ought to be taken into account to arrive at an appropriate sentence.

[51]        The Crown proposes a fit and proper sentence is four months incarceration followed by 24 months’ probation on conditions similar to those set out in the Presentence Report [Exhibit 1]. The Crown also seeks the following ancillary orders:

[52]        Ms. Feinberg submits that in arriving upon the Crown’s sentencing position, she took into consideration the relevant aggravating and mitigating factors, including P.M.M.’s Indigenous heritage. The Crown relies on the following authorities: (a) R. v. Gumban, 2017 BCPC 226 (CanLII); (b) R. v. Langevin, 2016 ONCA 412 (CanLII); (c) R. v. Plehanov, 2017 BCSC 2176 (CanLII); and (d) R. v. R.R.G.S., 2014 BCPC 170 (CanLII).

[53]        In Gumban, the offender pled guilty to invitation to sexual touching. Mr. Gumban was a 42 year-old custodian in a public secondary school. He propositioned a 14-year-old male student doing homework after class in the school cafeteria. Mr. Gumban showed the student a photograph of a man with an erect penis. Mr. Gumban placed his hand over his own crotch and said to the victim, “Do you want to eat it. Can you go to the washroom?” The victim said no and the incident ended. Mr. Gumban pled guilty and challenged the constitutionality of the 90-day minimum jail sentence in s. 152(b) of the Criminal Code. Mr. Gumban had an impressive list of mitigating factors which included: (a) the guilty plea; (b) he was genuinely remorseful; (c) he had no criminal record; (d) he sought out and obtained counselling after the offence; (e) he was assessed by the forensic psychologist as being low risk for future sexual offending; (f) he abided by strict bail conditions for over two years without any breaches; and (g) he was hardworking, married with two children. On the other hand, the Court found aggravating the fact Mr. Gumban was in a position of trust vis-a-vie the victim, he targeted the victim at school where he was entitled to feel safe and free from unwanted sexual advances, and the incident was clearly traumatizing to the victim. Despite the fact Mr. Gumban was a sympathetic offender, Judge Weirer held that the 90-day mandatory minimum for a summary conviction offence under s. 151(b) was not grossly disproportional and the reasonable hypotheticals proposed by the defence were "far-fetched.” Judge Weirer imposed a 90-day intermittent sentence followed by a period of probation.

[54]        In Langevin, a number of onlookers observed the 44-year-old offender in the cab of his truck repeatedly hug and kiss the 11-year-old daughter of his former intimate partner. Mr. Langevin and the victim were fully clothed. The adult witnesses described the kissing as similar to that which would occur “between spouses or lovers.” The victim and her mother testified for Mr. Langevin denying or minimizing the incident. In Langevin the Crown proceeded by indictment and proved its case with the evidence of the independent witnesses. The appellate court upheld the trial judge’s imposition of a 12-month sentence, with two years’ probation, although the sentence appeal had not been vigorously pressed.

[55]        Plehanov, is a sentencing decision after trial. The offender was convicted of sexually assaulting a six year old girl. The offender knew the victim’s family through church and had attended the victim’s grandparent’s home for an Easter gathering with the victim’s extended family. The victim’s father left the victim and her young siblings in care of Mr. Plehanov momentarily. As the victim was attempting to get into the van for the ride home she slipped and fell. Mr. Plenhanov caught her and used the opportunity to rub her buttocks over her pants with his hand, and touch the area of her groin for a few seconds with his hand. The father observed the incident and bolted to the van and stopped the touching. The sentencing judge found aggravating the age of the victim and the fact the offender was in a position of trust, albeit limited both in scope and duration. On the other hand, Mr. Plehanov had no criminal record, a fact Justice Blok did not consider as mitigating so much as the absence of an aggravating factor.

[56]        Mr. Plehanov argued his conviction had negative collateral consequence “akin to humiliation and ruin.” Justice Blok addresses this argument in paras 86-87:

[57]        Mr. Plehanov also challenged the statutory minimum jail sentence of one year. Justice Blok declined to revisit Madam Justice Beames’ decision in R. v. E.R.D.R., 2016 BCSC 684 (CanLII), upholding the constitutional challenge and declaring the one-year mandatory minimum sentence in s. 271(a) to be of no force and effect. Given the facts of the case before him, Justice Blok considered helpful E.R.D.R.; R. v. O.C.M., [2012] B.C.J. No. 2924; R. v. E.M.Q., 2015 BCSC 201 (CanLII); R. v. C.C., 2015 ONSC 5425 (CanLII); R. v. S.J.P., 2016 NSPC 50 (CanLII); and R. v. M.L., 2016 ONSC 7082 (CanLII). He distilled from those cases the appropriate range of sentence for the matter before him was three to 12 months' imprisonment.

[58]        Justice Block rejected the Crown’s submission for a 12 to 15 month jail sentence and the Defence’s submission for a suspended sentence and imposed a six-month jail sentence followed by 24 months’ probation. Justice Block states at paras. 93 to 95:

[59]        In R.R.G.S., after a four day trial, Judge Birnie found the 27-year-old accused guilty of sexual interference (s. 151) and unlawfully in a dwelling house (s. 349). He also pled guilty to one breach of undertaking with respect to alcohol consumption. R.R.G.S. was in a relationship with his spouse for approximately nine years. For the first four years they lived with his spouse’s parents, two sisters, and twin nieces who were then between the ages of four and eight years old. After they moved out of his spouse’s parent’s residence, the offender and his spouse continued to have contact with the nieces. When one of the twin nieces was fourteen years of age, R.R.G.S., entered into her residence without permission and went into her bedroom where she was sleeping. He was able to hug her, kiss her neck and back, and move apart her legs before she woke. She sat up and told him to stop. He did so immediately and got up and left the room and went out of the house the same way he had come in. The next day he sent her a text message that he was sorry.

[60]        In R.R.G.S., Judge Birnie found the following factors aggravating:

[61]        Judge Birnie found mitigating the fact the offender was (a) a young man (27 years old at the time of the offence and 29 at sentencing); (b) working; (c) had a young child and appeared to take his parental responsibilities seriously; (d) remorseful; (e) made some efforts to take counselling to try and assist with his drinking and to deal with his own childhood trauma and gain some insight into his offending behaviour. Judge Birnie found the Indigenous offender’s experience of alcoholism, violence, and sexual molestation as a child flowed from the breakdown of family and community values and traditions as a result of colonization, settlement, and residential schools. She did not find, however, the Defence had established on the balance of probabilities the offender suffered or was likely to suffer from either Fetal Alcohol Effect (“FAE”) or any other mental illness. Ultimately, Judge Birnie imposed a 90-day intermittent sentence followed by three years’ probation.

[62]        In Langevin and Plehanov, the Crown proceeded by indictment. I do not consider the fact the Crown has proceeded summarily in this case justification to reduce what would be a fit sentence had it proceeded by indictment. In R. v. Solowan, 2008 SCC 62 (CanLII), the Supreme Court of Canada held this was not the correct approach:

[63]        The Crown submits the aggravating factors and the absence of mitigating factors places a fit sentence for P.M.M. beyond legislated minimum 90-day jail sentence.

[64]        The Defence does not challenge the 90-day minimum jail sentence set out in ss. 151(b) and 152(b), but seeks a 90-day intermittent jail sentence followed by a period of probation. The Defence rightly concedes this is not the right case to argue the 90-day statutory minimum sentence is grossly disproportionate to the offender.

[65]        Section 732(1) of the criminal code which states:

[66]        Apparently, the local detachments of the Royal Canadian Mounted Police in Houston and Smithers cannot accommodate offenders serving intermittent sentences for child sexual offences. Such offenders need to be placed in protective custody, which means a separate cell, which the local detachments do not have available. The Defence argues that this limitation raises issues under s. 6(2)(a), which guarantees the right of every citizen to move to and take up residence in any province, s. 11(i) which guarantees a person convicted of an offence to the benefit of the lesser punishment if it has been varied between the time of commission and the time of sentencing, and s. 15, which holds that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. The lack of facilities outside the urban centres deprives rural offenders less onerous sentencing options available to their urban counterparts.

[67]        The Defence also argued, but did not press, there is a distinction between a breach of trust and a breach of authority as set out in s. 718.2(a)(iii). Although in committing the sexual offence against T.T., P.M.M. breached a position of trust, it does not automatically follow he was also a person in authority. Trust provides an offender with access to the victim. A breach of authority is something different and more aggravating.

[68]        The Defence submits the presence of Gladue factors makes the mandatory minimum sentence of 90 days appropriate in this case.

[69]        As the sentencing judge, I must consider the gravity of the offences of which P.M.M. was convicted, his degree of responsibility in their commission, having regard to his unique individual circumstances. This individualization in sentencing requires me to consider all aggravating and mitigating circumstances, and the collateral consequences. An aggravating factor, either statutorily or judicially mandated, will induces a court to impose a longer sentence than otherwise may be imposed. A mitigating factor will reduce the sentence that might otherwise be imposed. The absence of an aggravating factor does not equate to a mitigating factor or vice versa: see Scofield, paras. 35-36 and R. v. Prince, 2018 BCSC 987 (CanLII), para. 72. 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.

[70]        Set out below are the circumstances I find relevant in determining a fit sentence for P.M.M.:

[71]        Section 718.01 of the Criminal Code requires a court in imposing a sentence for an offence involving abuse of a person under eighteen years of age to give primary consideration to the objectives of denunciation and deterrence. This includes sentencing for sexual interference: R. v. Williams, 2019 BCCA 295 (CanLII), para. 64. Section 718.2(a)(ii.1) of the Criminal Code holds that evidence the offender “abused a person under the age of eighteen years . . . shall be deemed to be aggravating circumstances.”

[72]        T.T. was 13 at the time of the offence. The Crown and Defence do not agree as to the application of s. 718.2(a)(ii.1) given the fact T.T. was under the age of 16 is already an essential element of the offences of sexual interference and invitation to sexual touching. There is divergent jurisprudence on this issue. In R. v. Johnston, 2011 NLCA 56 (CanLII), White J.A. for the Newfoundland Court of Appeal found the sentencing judge, erred in principle in finding as an aggravating factor in a pornography charge “the nature of the crime itself which involves the victimization of children and the utter destruction of their lives,” White JA states at para. 18.

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

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

[75]        In finding the sentencing judge imposed too low of sentence for the sexual assault of a 14-year-old victim, Justice Campbell stated:

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

[77]        At the time of the sexual interference and sexual assault, T.T. was 13 years old. There is some logic to the proposition that the younger the child is, the more vulnerable they are to sexual predation. Given the divergent binding authorities, I am declining to find the fact T.T. was under 18 years of age at the time of the offence of sexual interference as aggravating beyond the overarching requirement under s. 718.01 which directs the Court to give primary consideration to the principles of deterrence and denunciation when sentencing an offender convicted of sexual offences against a child.

[78]        In Akumu, at para. 62 and in R. v. Jaden, 2018 BCSC 1685 (CanLII), the BC Supreme Court justices held a significant age gap between the offender and victim is an aggravating factors. In this case P.M.M. was almost 50 years older than T.T., which is a far greater age difference than in Akumu or Jaden. According I find the significant age gap in this case an aggravating factor.

[79]        The sentencing judge must also consider any collateral consequences arising from commission of an offence, the conviction for an offence, or the sentence imposed for an offence that impacts the offender: R. v. Pham, 2013 SCC 15 (CanLII) and R. v. Suter, 2018 SCC 34 (CanLII). In this case, I recognize that a collateral consequence is P.M.M.’s alienation from his extended family as result of the offence and his strict bail conditions. In my view, familial divisiveness is an inevitable consequence of P.M.M.’s offending. Nevertheless, I recognize it has been severe. P.M.M. is now alienated from his grandchildren and in-laws, a fact which may make P.M.M.’s rehabilitative journey more difficult. I do not, however, consider significant P.M.M.’s complaint he is now forced to live in a “corrupt ghetto” in Houston, BC. His counsel says P.M.M.’s family moved to that community in order to be in closer proximity to medical care.

[80]        I have taken into consideration the circumstances of the offence and those personal to P.M.M. I am mindful of the purposes and principles of sentencing and take guidance from the case authorities previously discussed. I have considered P.M.M.’s Indigenous heritage and the systemic factors within society itself and the background factors unique to P.M.M. that may have played a role in his criminal behaviour. In considering P.M.M.’s culpability in these offences, I have not lost sight of T.T., a young and vulnerable girl who has been traumatized by incidents giving rise to these proceedings.

[81]        In my view a fit jail sentence for the offences before the Court is more than that which either the Crown or the Defence has sought. But for the position of the Crown, I would have imposed a six month jail sentence. I consider the four month jail sentence the Crown proposes is at the bottom of the appropriate range and the 90 day sentence the Defence proposes unjustifiably lenient given the absence of strong mitigating factors. As the four months proposed by the Crown is still within the range of a fit sentence, this is the jail sentence I will impose, concurrently with respect to both Counts, less time served in pre-sentence custody, followed by 24 months’ probation. I will also grant some, but not all, the ancillary orders the Crown seeks.

[82]        P.M.M., for the offence of sexual interference charged in Count 1 of Information 25135-1, I sentence you to a term of imprisonment of 120 days, less time served in pre-sentence custody, to be served concurrently to any other sentence I impose today on Count 2.

[83]        For the offence of invitation to sexual touching charged in Count 2 of Information 25135-1, I sentence you to a term of imprisonment of 120 days, less time served in pre-sentence custody, to be served concurrently to the sentence I imposed on Count 1.

[84]        You have spent 12 days in presentence custody. You are entitled to enhanced credit at the rate of 1.5 days for a total of 18 days presentence credit. This means you have 102 days in custody yet to be served.

[85]        Upon completion of prison sentences, you will be on a period of probation for 24 months on the following terms:

[86]        I also make the following ancillary orders: