IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         On January 8, 2020, after a three day trial, I found C.J.J. guilty of sexually assaulting J.P. between December 1, 2017, and February 28, 2018, at or near [omitted for publication], BC. At the time of the offence, J.P. was 14 and 15 years old; C.J.J. was 20. They had a brief intimate relationship until J.P.’s mother learned of it and complained to the police. J.P. was a willing participant in the sexual activity and a reluctant participant in these criminal proceedings. Because she was five years and two months younger than C.J.J., J.P. was statutorily unable to consent to the sexual activity.

[2]         C.J.J. is now before me for sentencing. He is a youthful first offender who lives a pro-social lifestyle. The Crown seeks a sentence of four to six months incarceration followed by a period of probation. The defence asks for a conditional discharge or a suspended sentence. C.J.J. poses no danger to the public or risk of reoffending. But for the sentencing principles of general denunciation and deterrence, C.J.J. would be not facing a custodial sentence. If C.J.J. is to be incarcerated, no matter how briefly, he will have to be removed from the remote northern community in which he now lives and works, and transported to a regional correction facility elsewhere in the province. This province is now in month seven of a state of emergency as a result of the COVID-19 pandemic. Transitioning C.J.J. to and from correctional facilities imposes risks and stresses on C.J.J., his community and the correctional facility. It involves two 14-day isolation periods, one when C.J.J. arrives at the correctional facility, and one when he returns to his community. The induction process for new inmates strains the resources of the correction facilities, which was never designed to maintain physical distancing among its staff and inmates. It also increases the health risks to C.J.J. and his community as he is moved about the province. The issue I must consider is whether a non-custodial sentence in these circumstances is still proportional to the seriousness of the offence or to the moral culpability of the offender.

[3]         The salient issue before the Court is whether C.J.J. ought to receive a custodial or non-custodial sentence. A probation period and the ancillary orders the Crown seeks are not in dispute.

[4]         This matter came before me for sentencing on August 26, 2020. I heard submissions of counsel and received into evidence the Presentence Report (“PSR”) dated May 13, 2020, authored by Probation Officer Nicole Fuerst, which I asked be marked as Exhibit 1 in these sentencing proceedings.

[5]         At the conclusion of the August 26, 2020, I invited counsel to provide further written submissions on the constitutionality of those provisions of the Criminal Code, namely ss. 741.1(c) and 741.1(f)(iii), which prohibit the Court from imposing a conditional sentence. On October 6, 2020, I received further submissions from the Crown, and from the Defence Counsel on October 16, 2020. These are my reasons for sentence.

[6]         C.J.J. and J.P. met in December 2017, through a mutual friend over Facebook. At the time of their meeting C.J.J. was 20 years old, having being born on [omitted for publication]. J.P., having been born on [omitted for publication], was 14 years old, just [omitted for publication] shy of her 15^th birthday. C.J.J. and J.P.’s mutual friend H., was 16 or 17, and worked in a store on C.J.J.’s [omitted for publication] delivery route.

[7]         At the time of the offence, C.J.J. lived in [omitted for publication], a small community [omitted for publication] of [omitted for publication], BC. J.P. lived in [omitted for publication] with her mother, C.R. In 2017, J.P. was in Grade 9, and attended school through an on-line learning centre.

[8]         After their initial contact through Facebook, C.J.J. and J.P. met in person. Their relationship quickly became intimate and sexual. C.J.J. and J.P.’s relationship continued until January 19, 2018, when C.R. demanded it terminate because of their age disparity.

[9]         The facts relevant to this conviction are set out in my Reasons for Judgment of January 8, 2020, indexed as R. v. C.J.J., 2020 BCPC 2 (CanLII). In a nutshell, I was satisfied beyond a reasonable doubt that C.J.J. knew J.P.’s actual age and therefore did not believe she was at least 16 years old while they were sexually active. In any event, even if C.J.J. did honestly believe J.P. was at least 16 years old, which I did not find, he did not take reasonable steps to ascertain her actual age.

[10]      C.J.J. is now 23 years old. He was born in [omitted for publication], but has lived in [omitted for publication] area since he was three. He has a close and loving relationship with his parents and sibling. His childhood, although happy, was not without its troubles, as is the norm.

[11]      Both before and after his relationship with J.P., C.J.J. has had intimate relationships with females his own age. He is now in a strong and happy relationship with a former classmate, K.N. C.J.J. and K.N. cohabitate in a duplex in [omitted for publication].

[12]      C.J.J. is a hard worker and has been gainfully employed since high school. He worked delivering [omitted for publication] to vendors at the time of the offence. For the past year and one-half C.J.J. has worked on a vacuum truck for [omitted for publication], as does his brother. His employer describes C.J.J. as an excellent employee, who is punctual, respectful and who “gets along with everyone.” C.J.J.’s has recently been promoted to a supervisory role. C.J.J. has a number of vocational certification and aims to obtain his Class 1 licence driver’s licence.

[13]      C.J.J. does not suffer from any mental illness or addiction issues. Nevertheless, he has expressed his willingness to participate in any sex offender program or counselling condition as the Court may impose.

[14]      C.J.J. does not have any criminal record.

[15]      Section 722 of the Criminal Code directs a sentencing judge to consider a victim impact statement for “the purpose of determining the sentence to be imposed.” In R. v. Berner, 2013 BCCA 188 (CanLII), the Court of Appeal held (at para. 12) that victim impact statements play an important role in the sentencing process. At para. 13, the appellate court states, “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.”

[16]      In my Reasons for Judgment, I noted at para. 66:

[17]      J.P. did not provide the Court with a Victim Impact Statement and refused to participate in the PSR process. She told PO Nicole Fuerst she wanted to keep the incident ‘in the past’. PO Fuerst also interviewed the victim’s mother, C.R. C.R. admitted her daughter was angry at her for reporting the offence to the police. C.R. asserts the offence had a profound impact on multiple areas of J.P.’s life. She claims that prior to the offence J.P. was a ‘perfect kid’ who earned good grades in school and did not get into trouble. C.R. asserts the offence negatively impacted J.P.’s mental health, her performance at school and her ability to create and maintain friendships with her peers.

[18]      C.R. asks the Court to order C.J.J. pay her $1,270 in compensation for lost wages and relocation costs arising from the offence. She also seeks an ongoing order prohibiting C.J.J. from contacting J.P.

[19]      Based on the New Brunswick Court of Appeal decision indexed as R. v. Peterson 2012 NBCA 67, the Crown seeks a sentence comprising of four to six months incarceration, followed 12 – 18 months’ probation on the terms and conditions set out in PSR, and three ancillary orders (DNA, a SOIRA order, and mandatory weapons prohibition under s. 109 (a)). The Crown submits this sentence is an increase over that imposed by the New Brunswick Court of Appeal in Peterson in accordance with the Supreme Court of Canada direction in R. v. Friesen, 2020 SCC 9.

[20]      The defence seeks a suspended sentence for a period of six to 12 months’ with conditions. The Court can impose punitive conditions ordinarily associated with a conditional sentence such as a curfew, counselling, community work service, drug and alcohol abstention during the probationary period. The defence takes no position with respect to ancillary orders the Crown seeks. The defence argues this sentence is appropriate given: (a) C.J.J.’s youth; (b) he presents no risk to reoffend; (c) the offence occurred three years ago; (d) given the COVID-19 pandemic, incarceration is more perilous and more punitive than it was previously; and (e) s. 718.2 of the Criminal Code requires the court to consider all available sanctions, other than imprisonment.

[21]      In this case the Crown has proceeded by indictment and s. 271(a) of the Criminal Code governs. It states:

[22]      The statutory minimum sentence of one year incarceration where the Crown has proceeded by indictment has been struck down as unconstitutional. In R. v. E.R.D.R., 2016 BCSC 684 (CanLII) the offender pled guilty to one count of sexual assault (s. 271) and the Crown stayed the charge of sexual interference (s. 151). Justice Beames declared the one-year mandatory minimum sentence in s. 271(a) violated s. 12 of the Charter of Rights and Freedoms and to be of no force and effect. Mr. Justice Blok declined to revisit that issue in R. v. Plehanov, 2017 BCSC 2176 (CanLII), aff’d in 2020 BCCA 249 (CanLII). More recently in R. v. Lafferty, 2020 NWTSC 4 (CanLII), Justice Charbonneau, also concluded that s. 271(a) of the Criminal Code contravenes Section 12 of the Charter and declared the words “and to a minimum punishment of imprisonment for a term of one year” in Section 271(a) to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982. Section 271(a) was also successfully challenged in R. v. MacLean, 2018 NLSC 209.

[23]      I have set out the relevant sentencing portions of the Criminal Code below.

[24]      Proportionality (s. 718.1) is the fundamental principle of sentencing which requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Friesen, 2020 SCC 9. 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. Proportionality is determined both on an individual basis and by comparing the case before the court with similar cases, while taking into account the sentencing objectives set out in ss. 718 and 718.2 of the Criminal Code: Lacasse at paras. 53-54. A sentence will be demonstrably unfit if it is disproportionate to the conduct underlying the offence and constitutes a marked departure from sentences imposed for similar conduct.

[25]      In Friesen the Supreme Court of Canada held the paramount sentencing objectives for sexual offences against children are deterrence and denunciation. Denunciation communicates society’s condemnation of the impugned conduct: R. v. Proulx, 2000 SCC 5 (CanLII), at para. 102 citing R. v. M (CA), 1996 CanLII 230 (SCC). Deterrence "refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct”: R. v. BWP; R. v. BVN, 2006 SCC 27 (CanLII). Where the principles of denunciation and deterrence have priority, the focus of the sentencing judge is more on the offence committed (the conduct) than on the offender. While factors personal to the offender, such as rehabilitation and Gladue factors remain important, they necessarily take on a reduced role: Friesen, paras.104-105. This priority focus on conduct reflects the gravity and wrongfulness of the conduct and the serious harm it causes.

[26]      In Lacasse, Wagner J. (as he then was), stated:

[27]      In Proulx, the Supreme Court of Canada held that where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction.

[28]      Sentencing is a highly individualized process. The proportionality analysis requires the sentencing judge to go beyond considering the circumstances of the offender and the offence and weigh all of the aggravating and mitigating circumstances and collateral consequences. An aggravating factor will tend to increase the severity of the sentence; a mitigating factor will weigh in favour of a more lenient sentence. The Crown must prove all disputed aggravating factors beyond a reasonable doubt: R. v. Gardiner, 1982 CanLII 30 (SCC). The offender must prove all disputed mitigating factors on a balance of probabilities: s. 724(3)(d) of the Criminal Code: R. v. Dreger, 2014 BCCA 54 (CanLII).

[29]      Section 718.2(a) of the Criminal Code states a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.” For the most part, aggravating and mitigating factors relate to two categories:

[30]      The 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 and R. v. Suter, 2018 SCC 34. The collateral consequences are not necessarily aggravating or mitigating factors under section 718.2(a) of the Criminal Code as they do not relate to the gravity of the offence or the level of responsibility of the offender. Nevertheless, they do speak to the personal circumstances of the offender. The consequences can flow from the function of legislation, or social, personal or occupational implications. They sometimes result in disqualification from benefits or activities or other burdens and hardships that flow from a conviction. Collateral consequences cannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender: Suter.

[31]      In an effort to promote a uniform application of the law of sentencing to sexual offences against children, the Supreme Court of Canada has identified a list of non‑exhaustive significant factors for the sentencing judge to consider in determining a fit sentence. I have set out below the factors and others I have considered in this case.

[32]      The first factor the Supreme Court recognized as significant in determining a fit sentence for sexual offences against children is the likelihood the offender will reoffend: Friesen, paras. 122 to 124. In this case I find the following mitigating:

[33]      Although not necessarily mitigating, it is noteworthy that C.J.J. has been on bail now for over two years without any breaches.

[34]      Considering the above mitigating factors, I find C.J.J. presents a very low, if any, risk to reoffend. This reduces the Court’s need to emphasize the sentencing objective of separating C.J.J. from society to protect vulnerable children from wrongful exploitation and harm.

[35]      The second Friesen factor in determining a fit sentence for a sexual offence against a child is whether the offender abused a position of trust. The presence of this factor increases the harm to the victim and thus the gravity of the offence, and it also increases the offender’s degree of responsibility: Friesen, paras. 125-130. In this case, C.J.J. was not in a position of trust or authority vis-à-vis J.P. He met her through a mutual friend. C.J.J. was not a family member or trusted friend or neighbour and the sexual activity did not occur in her home. It cannot be said the sexual activity damaged J.P.’s sense of security in her home environment.

[36]      The third Friesen factor is the frequency and duration of the sexual abuse: Friesen, paras. 131 - 133. The Courts have held that sexual violence against children over a long period of time and repeated on multiple occasions should attract significantly higher sentences to reflect the full cumulative gravity of the crime and the offender’s increased degree of responsibility. In the case, in the Admissions of Fact filed as Exhibit 1 at trial states, “Between December 7, 2017 and February 1, 2018, C.J.J. and J.P. engaged in sexual intercourse approximately once per week.” At trial, the evidence was C.J.J. and J.P.’s relationship ended on January 18, 2018. In this case, I find aggravating the fact that C.J.J. continued the sexual relationship after he learned J.P. was under the age of 16.

[37]      The fourth Friesen factor is the age of the victim. Children who are particularly young are even more vulnerable to sexual violence, thereby enhancing the offender’s moral blameworthiness. In this case, had J.P. being two months older, C.J.J. would not have been charged by operation of s. 150.2.1 which holds that for a 14 or 15 year old complainant, consent is a defence to a charge of sexual assault if she was less than 5 years younger than the offender.

[38]      The Courts recognise that a sexual relationship between an adult and youth are “inherently exploitive” because of the victim’s lack of maturity, judgment, and experience: Friesen, para. 53. I pause here to mention that although a young adult, C.J.J. presents physically and emotionally as someone much younger than his biological age. Beyond their age difference, I did not discern a significant power imbalance between C.J.J. and J.P. There is no evidence of manipulation, grooming, coercion, threats, demeaning behaviour or gratuitous violence. C.J.J. and J.P. struck me as two young people who, immediately after meeting, became enthralled with each other. C.J.J. does not impress me as someone who treated J.P. as a sexual object. Be that as it may, J.P. was too young to be his intimate partner.

[39]      The fifth Friesen factor is the degree of physical interference. In the Admissions of Fact, filed as Exhibit 1 at the trial, C.J.J. admits that when engaging in sexual intercourse, he would insert his penis into J.P.’s vagina. The Supreme Court recognizes that relevant to sentencing in these types of cases is the sexual nature of the touching and its violation of the victim’s sexual integrity. Penile penetration can create a risk of disease and pregnancy, particularly if unprotected. Nevertheless, Friesen cautions the sentencing courts against establishing a hierarchy of physical acts or treating penetration as the most egregious conduct. The modern focus is not so much on bodily integrity, but rather on the psychological and emotional harm to the child: Friesen, para. 135. These harms include damage to the victim’s personal autonomy, bodily and sexual integrity, dignity and equality, to their relationships with their families and communities, and harms to the families, communities and society.

[40]      In this case, C.J.J. had sexual intercourse with J.P. Given J.P.’s reluctance to participate in the prosecution or sentencing of this matter, it is difficult to weigh with any precision the impact of the offence on her physical, psychological and emotional well-being.

[41]      C.R. maintains the offence had a significant adverse impact on her daughter. This is a sentencing hearing, and the rules of evidence are relaxed. Section 723(5) allows the Court to admit and consider hearsay evidence. In Friesen, the Supreme Court held (at para. 85) that a Victim Impact Statement presented by a parent will typically provide the “best evidence” of the harm that the child has suffered. I note, however, J.P. was an adolescent who kept the sexual nature of her relationship with C.J.J. a secret from her mother. I am not convinced C.R.’s description of her daughter’s behaviour before and after her relationship with C.J.J. accords with the evidence at trial. In my Reasons for Judgment, at para. 69, I found C.R.’s evidence as to when various events occurred somewhat unreliable. I note C.R.’s comments to PO Fuerst suggest her daughter was attending a bricks and mortar school at the time of the offence when in fact she did so virtually.

[42]      In Friesen, the Court recognizes (at para. 83) in cases where the victim is still a child at the time of sentencing, it may be impossible to determine the nature and extent of the harm that the victim will experience during childhood, since particular forms of harm may materialize following the date of sentencing. Still, even if an offender commits a crime does not result in any actual harm, the sentencing judge must consider the potential for reasonably foreseeable harm when imposing sentence.

[43]      J.P. was 14 and 15 years old at the time of the offence. One harm that has been actualized was the damage to J.P.’s relationship with her mother. C.R. objected to her daughter having a sexual relationship with C.J.J. J.P. was angry with her mother for disclosing this relationship to the police thus initiating these proceedings.

[44]      When they analyze the gravity of the offence, sentencing judges must always take into account forms of potential harm that have yet to materialize at the time of sentencing but are a reasonably foreseeable consequence of the offence and may in fact materialize later in childhood or in adulthood. Were J.P. much younger, the emotional and psychological impact would be evident. In this case, I assume there was some emotional and psychological harm to J.P. as a result of her relationship with C.J.J. and its termination, albeit not comparable to cases such as Friesen involving a breach of trust against a much younger child.

[45]      The sixth Friesen factor is the victim’s participation. As J.P. was five years and two months younger than C.J.J., she could not legally consent to their sexual activity. Accordingly, her participation in that activity is not a mitigating factor, nor even a legally relevant consideration at sentencing. As indicated previously, despite his pro-social lifestyle and strong work ethic, C.J.J. presents as much younger than his biological age. Nevertheless, he was the adult and therefore responsible to refrain from engaging in sexual activity with J.P., notwithstanding her willing participation.

[46]      In this case, J.P.’s willing participation in the sexual activity is a neutral factor, as is the fact that if she had been two months older, J.P. could have legally consented to the sexual activity. In Friesen, at para. 150, the Supreme Court cautioned:

[47]      In R. v. Hajar, 2016 ABCA 222 (CanLII), the Alberta Court of Appeal’s opening remarks are apposite:

[48]      In R. v. Lafferty 2020 NWTSC 4 (CanLII), Justice Charbonneau cautioned sentencing judges against trivializing sexual assault involving the ostensible consent by a victim, although close-in-age to the offender, does not have the legal capacity to consent to sexual activity: Justice Charbonneau states at para. 13:

[49]      I also consider neutral the fact C.J.J. was found guilty after a trial not as a result of a plea. As a general rule, a guilty plea is mitigating but never aggravating. 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. A guilty plea is an indicia of remorse. It is often a sign the offender has “come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending”: Friesen, para. 165.

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

[51]      A collateral consequence of incarceration is the COVID-19 pandemic which has resulted in significant mobility restrictions to persons detained in correctional facilities. In R. v. Stevens, 2020 BCPC 104 (CanLII), Judge Malfair canvassed the law on collateral consequences, exceptional circumstances and detention in the time of COVID-19. These authorities included: Voong, Pham, Suter, R.v. Morgan, 2020 ONCA 279 (CanLII); R. v. Lemmen, 2020 BCPC 67, R. v. Dakin, 2020 ONCJ 202; R. v. Hearns, 2020 ONSC 2365 ^; R. v. Day, 2020 NLPC 1319A00658; R. v. T K., 2020 ONSC 1935; R. v. Parasmothy, 2020 ONSC 2314, R. v. Kandhai, 2020 ONSC 1611 R. v. McGrath, 2020 ONCJ 192; R. v. Laurin, [2020] O.J. No. 1266 (ONCJ); R. v. Wilson, 2020 ONCJ 176; R. v. Haynes, [2020] O.J. No. 1982 (ONCJ); R. v. Myles, 2020 BCCA 105. Judge Malfair states at para. 44:

[52]      Judge Malfair found Mr. Stevens was an individual who did pose a public safety risk. In that case, Mr. Stevens was already in custody and the issue before the Court was whether he ought to be released with a time-served sentence due to the pandemic. Judge Malfair held (at para. 66) the collateral impact of COVID-19 on an offender sentenced to a further period of custody “is not of sufficient force to warrant a significant reduction of custody to maintain proportionality.” Judge Malfair concluded the fundamental principle of proportionality prevails and the indirect consequences of COVID-19 cannot be used to reduce a sentence to the point where it is no longer proportional to the seriousness of the offence or to the moral culpability of the offender.

[53]      In R. v. Lariviere, 2020 ONCA 324, the offender appealed his sentence arguing that the impact of COVID -19 justified reducing his sentence. The appeal was dismissed and in dealing with the issue, the Court took judicial notice of the pandemic; however, they limited it to the pandemic generally and not specifically to a prison population. The Court then went on to observe that there was nothing unique to the offender's situation that justified reducing an otherwise fit sentence. At para. 17, the court stated:

[54]      In this case, the evidence does not establish anything unique to C.J.J.’s particular circumstances of incarceration, or personal vulnerability, that would justify reducing an otherwise fit sentence. C.J.J. is not in-custody. What is unique, however is the impact of the COVID-19 pandemic on the community and the provincial correctional centres’ ability to safely manage inmates. I understand that provincial correctional facilities are straining to maintain proper cohorting and COVID mitigating induction processes, which include isolation protocols.

[55]      In Stevens, Judge Malfair references R. v. Parasmothy, 2020 ONSC 2314, wherein the Ontario Superior Court commented that. “there has been a move towards decreasing the inmate population as a result of the pandemic by release on bail and creative sentences which avoid incarceration. However, those measures should not be confused as meaning the default position will be for all people to remain out of custody where custody is necessary and warranted (para. 140).

[56]      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.” A sentence includes not only the period of incarceration, but also probation and ancillary orders.

[57]      In Friesen, the Supreme Court held at, that parity is an expression of proportionality. The Court states at para. 33:

[58]      In order to impose a proportionate sentence, the Court must reconcile both individualization and parity of sentences. Assessing parity requires me to determine the appropriate sentencing range for the offence for which C.J.J. is convicted. Sentencing ranges are guidelines and not hard and fast rules. I am mindful, however, that in Friesen, the Supreme Court of Canada indicated that two of its three objectives in that case was to (a) to explain the role of starting points and sentencing ranges in sentencing, and (b) to “send a strong message” that sexual offences against children are serious violent crimes, and that sentences for these crimes must increase to “accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large”.

[59]      C.J.J. was not charged with sexual interference. In my view the authorities for sentencing offenders convicted of sexual interference under s. 151 of the Criminal Code can be relevant and helpful. Recently, the Supreme Court held the principles it outlined in Friesen for sexual interference had relevance to “closely related offences” such as sexual assault (s. 271 of the Criminal Code). I note the maximum penalty for a s. 151 offence, when prosecuted by indictment is the same as a s. 271 offence, namely 14 years imprisonment.

[60]      In R. v. Williams, 2019 BCCA 295 (CanLII), the offender was convicted of sexual assault and sexual interference. The sexual assault charge was judicial stayed pursuant to the rule against multiple convictions as interpreted in R. v. Kienapple, 1974 CanLII 14. The BC Court of Appeal held (at para. 71) that in this province, sentences for sexual interference will generally fall within a range of 1 to 3 years’ imprisonment. In confirming this range, the Court referenced ss. 718.2 and 718.01 of the Criminal Code, and enduring and significant emotional, psychological, and often physical harm to the victim. Justice D. Smith, for the appellate court, held at para. 71:

[61]      In Williams, Justice Smith, references Justice Marchand’s decision in R. v. Angel, 2018 BCSC 1751, wherein he reviewed the range of sentence for sexual interference and stated:

[62]      On May 7, 2020, the Supreme Court of Canada in Her Majesty the Queen v. Kyler Ryan David Williams, 2020 CanLII 32267 (SCC), was remanded to the BC Court of Appeal for disposition in accordance with R. v. Friesen, 2020 SCC 9.

[63]      In R. v. G.M., 2015 BCCA 165, the BC Court of Appeal held that the range of sentence for sexual assault involving intercourse is two to six years' imprisonment.

[64]      In considering a fit sentence for C.J.J., I have to consider the case attracts the application of the principle of “exceptional circumstances”. In R. v. Voong, 2015 BCCA 285, Madam Justice Bennett defined exceptional circumstances as follows:

[65]      Recently, in R. v. L.S.N., 2020 BCCA 109 (CanLII), the BC Court of Appeal, allowed the Crown appeal from a suspended sentence imposed on an Indigenous offender for sexual interference of his 11 year old step-daughter. In substituting a prison sentence of two years less one day, the appellate court held (at para. 54), that exceptional circumstances do not justify a departure from the proportionality principle:

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

[67]      I have considered a number of decisions which pre-date the Supreme Court of Canada’s decision in Friesen, which include R. v. Peterson 2012 NBCA 67, R. v. Alfred, 2019 BCSC 1452 (CanLII), and R. v. L.J.H., 2018 BCPC 413 (CanLII).

[68]      In R. v. Peterson 2012 NBCA 67, the 22 year old offender pleaded guilty to sexual assault of a 14-year-old co-worker who told him she was 18. The sentencing judge granted Mr. Peterson a conditional discharge on the basis the sex acts were consensual and the accused had committed a “crime in law but not in fact.” The Brunswick Court of Appeal allowed the Crown appeal substituting a three month custodial sentence for the conditional discharge but stayed the execution of sentence given the passage of time and absence of public interest in incarcerating the offender. The majority found the sentencing judge erred in a number of ways, including failing to give primary consideration to the principles of denunciation and deterrence as required by s. 718.01:

[69]      The majority also found the trial judge made a clear error in determining Mr. Peterson was guilty of a criminal in law, but not in fact. Justice Green for the majority commented (at para. 23) there was no such legal construction. He states:

[70]      In R. v. Alfred, 2019 BCSC 1452 (CanLII), the offender was charged indictably with sexual assault and sexual interference. He was convicted after trial of both offences. Justice Williams found that on two or three occasions between August 1, 2017, and December 31, 2017, Mr. Alfred had sexual intercourse with the 13 year old victim. Mr. Alfred was an indigenous first time offender with significant Gladue factors, which involved a dysfunctional family unit, foster care, physical, sexual and substance abuse, and social isolation. On the other hand, Mr. Alfred had long term employment and lived a relatively prosocial lifestyle. Justice Williams found aggravating the fact that (a) Mr. Alfred was 13 years older than the victim and he knew her age; (b) the offence included multiple acts of sexual intercourse; and (c) as statutorily prescribed under 718.2(ii.1), the victim was under the age of 16 at the time of the offences.

[71]      In Alfred, the Crown sought an incarcerative sentence in the range of three to four years for the offence of sexual interference and various ancillary orders. Mr. Alfred sought a non-incarcerative sentence and did not oppose the ancillary orders. At para. 24, Justice Williams explains why he rejected the defence’s submissions for a non-custodial sentence:

[72]      Justice Williams imposed a sentence which included nine months’ incarceration followed by two years’ probation, a 20-year SOIRA order (s. 490.013(2)(b)), a mandatory DNA order (s. 487.051), a five-year s. 161(1) order, a 10 year mandatory firearms prohibition (s. 109(1)(a)), and a non-communication order with the victim (s. 743.21). I note that Alfred predates the Supreme Court of Canada’s release of its decision in Friesen.

[73]      I have also considered R. v. L.J.H., 2018 BCPC 413 (CanLII), a decision of PCJ Jahani. At the time of the offence, the offender was 23 and the victim 14. He had no criminal record, although subsequent to his arrest for sexual interference, L.J.H. was charged with multiple breaches of his bail condition prohibiting contact with the victim. L.J.H. was not in a position of trust vis-à-vis the complainant. In the past, he had more age-appropriate intimate partners. The Court had no evidence of manipulation or coercion, threats of violence or other forms of extortion or psychological manipulations, or that the sexual acts involved violence. Judge Jahani accepted that L.J.H. was emotionally immature and suffered from the effects of ADHD, and possibly depression and anxiety, which impacted his decision-making abilities and coping mechanism. In the absence of detailed medical reports or cognitive assessments, the Court could not apprehend the extent of L.J.H.’s cognitive impairment or his emotional and intellectual age level. Consequently, Judge Jahani could not find L.J.H.’s immaturity and lack of insight and understanding warranted a sentence below the range, such as was done in Scofield. Judge Jahani imposed an 11 month time served sentence for both the substantive charge of sexual interference and the breaches of bail.

[74]      A conditional sentence order is not available for the offence of sexual assault (s. 271) prosecuted by way of indictment by operation of s. 741.1(c) which precludes a CSO for offences attracting a maximum sentence of 14 years and by s. 741.1(f)(iii) specifically excluding a s. 271 offence.

[75]      Recently, the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478 struck down the constitutionality of that section of the Criminal Code (s. 742.1(c)) which restricts the availability of a conditional sentence for offences prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life, and s. 742.1(e)(ii) of the Code, which restricts the availability of a CSO for offences prosecuted by way of indictment that involved the import, export, trafficking or production of drugs, with a maximum term of imprisonment for 10 years.

[76]      In Sharma, the 20-year-old Indigenous offender pled guilty to importing cocaine contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996. She had no prior criminal record and committed the offence in order to pay her rent and avoid homelessness for herself and her young daughter. The sentencing judge characterized Ms. Sharma as “an intergenerational survivor of the government’s residential school effort to eradicate the cultural heritage of her people.” Nevertheless, the judge rejected Ms. Sharma’s application for a CSO and her constitutional challenge to s. 742.1(c) which statutorily restricted its availability in that case. Ms. Sharma received a custodial sentence of 17 months.

[77]      On appeal, Ms. Sharma, argued that ss. 742.1(c) and 742.1(e)(ii) infringe s. 7 of the Charter because they are overbroad and arbitrary and s. 15 because of their discriminatory effect on Indigenous offenders on the basis of race. The Court of Appeal overturned the custodial sentence, agreeing that ss. 742.1(c) and 742.1(e)(ii) of the Code infringe s. 7 and 15 of the Charter and could not be saved by s. 1. The appropriate sentence would have been a CSO of 24 months less a day. The appellate court reasoned:

[78]      Although they did not find the impugned provisions arbitrary, the majority did find them overbroad because they deny CSOs for offenders convicted of an offence with a high maximum penalty even when the appropriate sentence is less than two years in prison. Feldman J.A., for the majority, found the impugned provisions were not saved by s. 1 of the Charter. She states at para. 179:

[79]      In the result, the majority declared that ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code unjustifiably infringe ss. 7 and 15 of the Charter and are, therefore, of no force or effect.

[80]      The Crown rightly submits the impugned provisions have not been struck in British Columbia and remain valid and in force. As such, a Notice of Constitutional Question is required in order to address the constitutionality of those provisions: Guindon v. Canada, 2015 SCC 41, paras. 15-19. I understand that no such notice was filed or served on the Attorneys General of British Columbia and Canada. Hence, this Court has no jurisdiction to consider the constitutionality of the provisions prohibiting a conditional sentence order in the case before me.

[81]      I also note that s. 741.1(f)(iii) was not before the appellate court in Sharma. I further note the Ontario Court of Appeal’s decision in Sharma is now under appeal to the Supreme Court of Canada. Defence counsel has advised this Court, however, there are two constitutional challenges to the prohibition against conditional sentences before the Provincial Court at this time, although no decisions have been rendered.

[82]      The Crown seeks a sentence which includes incarceration and the defence advocates for a non-custodial sentence. Given the paramountcy of denunciation and deterrence mandated by s. 718.01 of the Criminal Code, I accept a jail sentence is ordinarily mandated. In my view a suspended sentence, absent exceptional circumstances, is not an option for the reasons set out in Peterson. Although it can provide significant denunciation and deterrence when onerous conditions are imposed, a conditional sentence, absent a constitutional challenge, is not available in this case.

[83]      C.J.J.’s incarcerated is unnecessary for the protection or safety of the public. He has no criminal record, he is pro-social and poses no risk of reoffending. At the time of this sentencing, this Province has been in state of emergency for seven months as a result of the COVID-19 pandemic. I understand that the provincial correctional facilities are struggling to safely manage inmates as the pandemic persist. In these circumstances, I query whether adding C.J.J. to the prison population during a pandemic may actually increase the risk to the public by further straining the correctional facilities’ ability to maintain proper COVID mitigating processes to ensure the inmates safety.

[84]      The question I must answer is whether the impact of the ongoing pandemic constitute an exceptional circumstance? In Voong, Justice Bennett set out a non-exhaustive list of factors personal of the offender which might constitute “exceptional circumstances”; she did not address the societal effects of a pandemic on sentencing regime. Justice Bennett further stated (at para. 39) that “a suspended sentence has been found to have a deterrent effect in some cases”. Having said that, I recognize Voong was involved drug trafficking offences which do not have denunciation and deterrence as statutorily‑mandated primary considerations: see R. v. Plehanov, 2020 BCCA 249 (CanLII), para. 16.

[85]      I am not convinced the Court should simply turn a blind eye on the impact of COVID-19 on the community and correctional system, when considering whether to impose a custodial sentence given C.J.J. is not now nor has he ever been in custody. It is not just the length of time C.J.J. would remain in custody which is relevant, it is also the fact he would present a new intake into the prison population and contribute to the stresses on the induction process that requires physically separating him to allow for a 14-day isolation period. For a relatively brief period of incarceration, C.J.J. would have to be churned out of [omitted for publication] and into the correctional facility, isolated, and a few months later, churned out the correctional facility and back into [omitted for publication].

[86]      As the courts have often said in the past seven months, these are “unprecedented times”, “exceptional times”, “challenging times”, “difficult times”, “unusual times” and “uncertain times.” In R. v. LeClair, 2020 ONCJ 260, in which Justice Kwolek stated in para. 102, that Covid-19 is a factor that the court ought to consider in sentencing:

[87]      In my view, because of the impact of COVID-19 on this Province’s ability to manage the ingress and egress of inmates to and from correctional facilities, the public would be better served by keeping C.J.J. confined in the remote northern community in which he now lives. I am satisfied a non-custodial sentence in the circumstances of this offence and for this offender is still a fit sentence. If a conditional sentence had been available at law, I likely would have imposed one. As it is not, I am going to impose a suspended sentence which will also give effect to the principles of denunciation and deterrence through punitive sanctions.

[88]      C.J.J., on Count 1 of Information [omitted for publication] charging you with sexually assaulting J.P. between December 1, 2017 and February 28, 2018, at or near [omitted for publication], BC, I am suspending the passing of sentence and placing you on probation for 24 months.

[89]      You will be subject to a probation order for 24 months and you must comply with the following conditions:

[90]      Sexual assault is a primary designated offence. Pursuant to section 487.051(1) of the Criminal Code, I order you to provide a sample, or samples, of your bodily substances for purposes of registration in the national DNA databank. You must attend at the RCMP police station in [omitted for publication], BC, during regular business hours, on or before November 30, 2020, and submit to the taking of the samples. This order is valid until executed.

[91]      Pursuant to s. 490.012 of the Criminal Code, you to comply with the requirements of the Sexual Offender Information Registration Act for 20 years.

[92]      Pursuant to 109 of the Criminal Code you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substance for life.

[93]      As the offence occurred before July 22, 2019, there is no Victim Fine Surcharge under s. 737 of the Code.