IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         R.O. is before me today for sentence, having been found guilty at trial on November 6, 2019 on Count 1 of Information 105370-1.

[2]         Count 1 charged that:

[3]         Section 156 of the Criminal Code, which was in force on the dates alleged in the Information, provided that a person committing an offence under this section was guilty of an indictable offence and liable to imprisonment for 10 years.

[4]         M.L. was born [omitted for publication]. He was almost 7 years of age at the start of the timeframe alleged in the information and nearly 11 years old at the end of that time. The offender was in his early 20s and had been placed or adopted into M.L.’s wider family as an infant.

[5]         When he was 7, M.L. was looked after by his grandmother at her home and the offender would often be there for M.L.’s dinner and bath time. His grandmother ran the routine like clockwork, M.L. said.

[6]         During M.L.’s bath time the offender would often come in to the bathroom. Initially, R.O. would expose his genitals and masturbate in front of M.L.

[7]         After a time, the offender told M.L. he wanted him to touch his penis and M.L. reluctantly did so. “When an adult speaks, you listen,” M.L. said in evidence. He was afraid of being beaten by his mother if he made any complaint. He held the offender’s penis and rubbed it. He didn’t like going to his grandmother’s on this account, but felt he had no choice.

[8]         The genital touching escalated over time and included oral sex and anal penetration. M.L. was made to take the offender’s penis in his mouth. Once the offender got mad because M.L. bit him or hurt him with a tooth.

[9]         On one occasion, the offender turned M.L. around and bent him over the bathtub. M.L. thought he was going to be struck with a belt. Instead, something was poured on his butt, as he put it. This was followed by a lot of pain in his anal area. Something was going in, he said, and was not coming out.

[10]      M.L. started to cry and a hand came from behind and over his mouth, to keep him quiet he assumed. It was a small house and his grandmother was never far away.

[11]      The offender came by M.L.’s grandmother’s house frequently: two or three times per week. These assaults happened regularly over the period M.L. was 7 to 10 years old. M.L. then discovered that extracurricular activities at school, such as soccer, chess, games and sports could keep him out of reach of the offender and the offending.

[12]      The impact of the abuse inflicted by the accused on M.L. has been profound and has lasted many years, as M.L. stated in evidence, in his victim impact statement and as he told the Pre-Sentence Report writer, Crystal Brereton. As a youth, M.L. became untrusting of adults and defiant to authority. His relationship with his own family was damaged. He said he left home at 16 and saw little of his family thereafter.

[13]      M.L. reported that his lack of trust in people carried over into his relationships with others and that he has had a hard time over the years forming personal relationships. For many years, M.L. has struggled with alcohol and drug use issues and he still does. M.L. attributes his lifelong difficulties with substances and his current deteriorating mental health, including thoughts of suicide, to the sexual abuse he suffered as a child at the hands of the offender.

[14]      M.L. is on medical leave from work and attributes this at least in part to the trauma suffered by him as disclosed in this case. He is struggling financially.

[15]      The offender has a record of sexual offences involving young boys, with criminal convictions recorded against him in 1981, 1992, and 2014. The circumstances giving rise to those convictions arose after R.O. committed the assaults upon M.L.

[16]      While they are not previous criminal convictions as these offences occurred after the index offence, they nonetheless illuminate the range of sexual offending engaged in by R.O. over years, the need for treatment and rehabilitation where available, and the risk of the commission of further sexual offences involving children.

[17]      The record discloses the following convictions:

[18]      Dr. Vallance, a Vancouver psychiatrist, wrote a report on R.O. in relation to the six 1981 charges of gross indecency arising out of events in 1980. Dr. Vallance reported to lawyer Kendel Kaser on R.O.’s account of events involving two young boys while he was living with their family.

[19]      One of the boys, R.O. said, asked him about “the birds and the bees”. In the course of the conversation, R.O. exposed himself and masturbated to the point of ejaculation. He said he wanted to show the boys “sperm”. By that time the second boy was present to witness the act. On several other occasions, the boys fondled one another and R.O. as well.

[20]      Dr. Vallance described that R.O. gave an account of his involvement with “the other boys” beginning with their inquisitiveness about sex, there was no force or threats, never any anal intercourse and only on one or two occasions did he offer any of the boys alcohol.

[21]      Dr. Vallance described R.O. as having a simple command of language and suggested that he was at best of dull/normal intellectual ability. Dr. Vallance commented that regardless of the outcome of the legal matters, R.O. was in need of treatment and supervision.

[22]      In Dr. Meldrum’s 2014 Pre-Sentence Psychiatric Assessment, she noted that R.O.’s thought processes were organized and coherent. It did appear from his vocabulary that he was of low average or perhaps borderline intellectual functioning but when words were used that he did not understand, he was sufficiently assertive that he would ask for clarification.

[23]      Dr. Meldrum used the Static 99 R actuarial assessment to determine R.O.’s risk to reoffend sexually. This is not a clinical assessment. Given his age (then 60), R.O. was scored in the low to moderate range to reoffend. Sex offender treatment programming was recommended for R.O.

[24]      The accused was born to G.O. He reported that he never met her but has seen photos of her. The accused was adopted by M.S. at two weeks of age and was raised in Lillooet. R.O. has spoken of M.S. as “awesome” and one of the nicest people he ever met.

[25]      R.O. spent most of his life in Lillooet. He has been married to T.R. for 29 years. T.R. is aware of R.O.’s current and past convictions, but believes all of them to be false accusations. R.O. is of the same view, despite his disclosure to Dr. Vallance.

[26]      R.O. reported a diagnosis for depression for which he receives medication. In 2010 he suffered from suicidal ideation, a condition he does not currently have. He does suffer from anxiety and reportedly post-traumatic stress disorder resulting from a traumatic episode in his youth. He was subjected to two sexual assaults at age 10 by two male cousins. The offender has not sought out counselling in relation to these events.

[27]      R.O. reported multiple medical diagnoses he is or has struggled with, including diabetes diagnosed over the past two years and for which he receives medication, Chronic Obstructive Pulmonary Disease (COPD), sleep apnea, a possible pinched nerve in his back, arthritis and a hip replacement performed two years ago.

[28]      The offender started professional counselling with Ricardo Pickering at St’at’imc Outreach Health Services in the six months prior to the preparation of the Pre-Sentence Report. The current focus of the counselling has been anger management and symptoms of depression. If Mr. Pickering is to continue to work with R.O. the focus would be on the offender’s sexual offending and his inability to accept responsibility for his offences and after that addressing the factors in R.O.’s offending.

[29]      R.O. has described himself as being unable to ejaculate by age 13 and therefore unable to have children. This appears to be in contrast with his 1981 account to Dr. Vallance. By 1996, R.O. suffered from erectile dysfunction. He reported that he had completely lost his sex drive and did not have sexual intercourse from this date. It is to be noted that this physical condition did not prevent the commission of the 2011 offences (reflected in the 2014 convictions) by the offender.

[30]      R.O.’s Community Corrections file indicates on past supervision that he maintained denial on all convictions, minimized his sexual offending and was highly resistant to attending or participating in any interventions targeted at his sexual offending. He continues to believe any interventions aimed at his sexual offending are not beneficial to him.

[31]      Ms. Brereton noted at page 5 that in 2017, R.O. was referred to the Forensic Sex Offender Program by Community Corrections. Her report continues:

[32]      R.O. advised that he was willing to comply with conditions if given a community sentence but believed that the Forensic Sex Offender Program would be a “waste of time” given his age.

[33]      A thorough Gladue report was authored by Caroline Buckshot and presented in relation to this offender. R.O. was born [omitted for publication] and has just turned 67. The report outlines that he is a member of the [omitted for publication] First Nation, formerly the [omitted for publication] Indian Band, near Lillooet, British Columbia. Ms. Buckshot’s report references an earlier Gladue report prepared on this offender for the 2014 proceedings.

[34]      R.O. was reportedly apprehended by Ministry social workers at the age of two weeks when he was found at home without adequate supervision. He was subsequently placed with a non-Indigenous woman who raised him for 16 years and whom he referred to as his mother. He has spoken highly of her and he maintained a relationship with her for years after leaving her care.

[35]      It was not until the 1980s that R.O. discovered that he was Indigenous after meeting his brother R. He discovered he had four older brothers who were all adopted into different families. He has had limited contact with his siblings, due in part at least, to the nature of the charges he was facing.

[36]      G.O., the offender’s birth mother, was said to like drinking alcohol, and according to one named source, drank alcohol while pregnant with her sons. She died at a young age after suffering injuries in a house fire.

[37]      The offender said he didn’t remember much of his childhood but had a clear recollection of being sexually assaulted by two teenaged boys at two different times when he was ten years of age. They threatened to hurt him if he told anyone what had happened. He told the reporter that he had recurring dreams of the sexual things that happened to him.

[38]      R.O. quit school in Grade 11, at 16. In the months and years following, he obtained various employment positions as a construction labourer, short order cook, bartender, building supply worker and taxi driver. In 1991, the offender was employed as a grounds keeper at a campground in Lillooet when he met his common-law wife, T.R. They are still together.

[39]      In the 2014 Gladue report, R.O. reported that he was an alcoholic in his twenties but stopped abusing alcohol in 1994 after meeting T.R.

[40]      T.R. said that by 2009 she noticed that her husband seemed depressed, though he was not diagnosed with depression and medicated for it until 2011. She said that the medication needed adjustment to be effective and he was monitored closely by his physician.

[41]      In an undated letter from a locum tenens, Dr. Quadt, for his Keremeos doctor, Dr. Boshoff, to the Ministry of Employment and Income Assistance, R.O. was stated to be suffering from a variety of ailments including depression for many years, serious past problems with suicidal ideation, severe anxiety problems, chronic insomnia, difficulty with concentration, gross obesity and gout. A variety of medications were said to be prescribed for R.O. This letter may have been associated with R.O.’s application for Persons with Disabilities funding in 2014.

[42]      R.O. also stated to Ms. Buckshot that he had also been diagnosed with Chronic Obstructive Pulmonary Disease, Type 2 diabetes, high blood pressure and high cholesterol. He was unaware if his mother had consumed alcohol while pregnant with him and he did not recall ever being tested for Fetal Alcohol Spectrum Disorder.

[43]      R.O. was approved for Persons with Disabilities assistance in 2014 and received about $1,200 per month as a result.

[44]      There are many Gladue factors which are apparent in R.O.’s circumstances as reported by Ms. Buckshot, including loss of family and community, language and culture, low or irrelevant education, alcoholism, underemployment and low income, experience with the foster care system (including the “sixties scoop”), abandonment, homelessness and sexual abuse.

[45]      Ms. Buckshot points out that R.O. has been effectively cut off from the community of his birth. He does not attend ceremonies with his nation, does not know anything about his culture and does not speak his language. The “sixties scoop” represented an attempt to assimilate Indigenous children into non-Indigenous homes by means of the child welfare system. R.O. has described himself as a sixties scoop survivor and is a participant in a related class action lawsuit against the federal government.

[46]      Gladue considerations are addressed by the Supreme Court of Canada in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 S.C.R. 433 and require sentencing judges, by reference to s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. These circumstances and background may bear on the culpability of an offender and shed light on the level of the offender’s moral blameworthiness. Failure to take these circumstances into account may violate the fundamental principle of sentencing - that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[47]      Mr. Ricardo Pickering, counsellor, confirmed that R.O. had been consistent in attending counselling sessions until face to face meetings were ended by COVID-19 concerns.

[48]      Ms. Buckshot also reviewed community resources for sex offenders in the Lillooet area. Perhaps not surprisingly given the size of the community and resources available, Ms. Buckshot found such programs thin on the ground. The nearest regional centre, Kamloops, is a two hour drive from Lillooet.

[49]      Chief Colleen Jacob of the [omitted for publication] First Nation told Ms. Buckshot that her community offers no programs or counselling for sex offenders. She said:

[50]      Ms. Buckshot, who has experience with both federal and provincial corrections programs, reviewed sex offender programs available for offenders serving provincial sentences and classified to the Ford Mountain Correctional Centre for a Low-Moderate intensity program delivered over 4 or 5 months. Upon completion, offenders are asked to take part in a maintenance program offered within the institution or in the community to maintain and enhance gains made during the treatment phase.

[51]      Indigenous persons sentenced to a federal institution are managed by the Correctional Service of Canada (CSC) “within the context of the Aboriginal Continuum of Care model.” Offenders are transferred to the Regional Reception Assessment Centre (RRAC) where the offender’s needs, risk and responsivity are assessed. A Criminal Profile Report and Correction Plan would be developed during the assessment process at the RRAC.

[52]      Ms. Buckshot expected that this offender, if serving a federal sentence, would be assessed for the appropriate Integrated Correctional Program Model (ICPM) sex offender stream of either Moderate or High Intensity. Indigenous offenders can access additional resources, such as Elders and Indigenous Liaison Officers, throughout their sentences to assist them. The Pacific Institution has a unit specifically designed for the Indigenous population.

[53]      Older offenders with physical or mental health issues, or who need assistance with day-to-day care will be assessed and, if qualified, may be admitted to the 96 bed Psycho-Geriatric unit where many of the older offenders are Indigenous.

[54]      The Crown position on sentence is incarceration in the range of 8 to 10 years, where the maximum sentence for this offence is 10 years. That position is driven in part by the recent case of R. v. Friesen, [2019] S.C.J. No. 100, 2020 SCC 9. The Supreme Court of Canada stated by way of introduction at paragraph 1:

[55]      The accused Friesen pleaded guilty to sexual interference with a young child and attempted extortion of the child’s mother. The sentencing judge imposed a six year sentence. The Court of Appeal reduced the sentence to four and one-half years. The Supreme Court of Canada restored the six year sentence.

[56]      The Supreme Court stated that it wished to convey three overarching points. The first was to affirm the standard of review for sentencing set out in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. The second addresses the limits that appellate deference imposes on both sentencing ranges and starting points, and outlines particular concerns associated with starting point sentencing.

[57]      The third overarching point is set out at paragraph 5 as follows:

[58]      While confirming that sentences for sexual offences against children must increase, the court declined to set sentencing ranges or starting points for sentences. The Court added, at para. 114:

[59]      In seeking a sentence in the range of 8 to 10 years, the Crown has relied on the following factors mentioned by the Supreme Court of Canada in R. v. Friesen as being significant but not exhaustive in considering an appropriate sentence:

[60]      The Crown also underlined comments found in R. v. Friesen at paras. 90-92 that despite the high degree of moral blameworthiness involved in the sexual exploitation of children, the personal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability.

[61]      Likewise, courts must apply principles from R. v. Gladue 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 even in extremely grave cases of sexual violence against children. Systemic and background factors that have played a role in bringing an Indigenous person before the court may have a mitigating effect on moral blameworthiness.

[62]      The Crown also relied on a number of sentence cases to illustrate the sentence ranges on sexual offences against children prior to the issuance of the reasons in Friesen. I have had regard to these decisions, and similarly those submitted by defence, but I will not review them here.

[63]      These proceedings are held against the backdrop of the COVID-19 pandemic. In Regina v. Hearns, 2020 ONSC 2365, Justice Pomerance commented at para. 20 that:

[64]      At para. 23 she added the following:

[65]      The Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 86 (1), requires that the CSC shall provide every inmate with essential health care and reasonable access to non-essential health care. Section 86 (2) requires that the provision of health care shall conform to professionally accepted standards.

[66]      Section 121 of that Act provides that parole may granted in exceptional circumstances to an offender

[67]      The Crown submitted that the offender had not provided any evidence to establish that his current health issues are serious and debilitating, that they cannot be accommodated in a custodial setting or that the offender will suffer adverse health impacts if he is imprisoned. To be clear, there is no evidence before me that R.O. suffers from any of the conditions described in s. 121.

[68]      R.O., his counsel argued, sought restraint from the court and asked rhetorically, “How much does this court truly need to punish this accused?”

[69]      In 2014, the offender was assessed as a low to moderate risk to reoffend sexually. That risk, the offender argued, must be further reduced with the passage of a further seven years.

[70]      As an Indigenous man, R.O. suffered from a significant list of Gladue factors in his background. These are discussed above and could serve as a basis for some reduction of the high moral culpability that would otherwise mark the offences against M.L. The Gladue factors included a mother who was alcoholic. Whether or not R.O. was exposed to alcohol in utero it has been the opinion of two psychiatrists that he functions intellectually at a dull/normal or low average range. His doctor said he couldn’t concentrate. He didn’t finish high school.

[71]      He suffered from abandonment as part of the “sixties scoop” generation and was separated as an infant from his family, his culture and the community of his birth. At 10 years of age he was sexually abused by two older boys and he repeated these acts against M.L. more than 10 years later.

[72]      R.O. went through a period in his life where alcohol was a problem. His current ailments and medications are significant, and it is argued will cause his sentence to weigh heavily upon him.

[73]      Counsel reminded the court that R.O. was an immature adult at the time of the events charged and that this was a first offence.

[74]      The appropriate sentence for R.O., it was argued, would be a conditional sentence order (CSO). That submission was made on the strength of two BC Court of Appeal decisions, which confirmed that CSOs, introduced in late 1996, is available for offences committed before the amending provisions were proclaimed. Those cases are R. v. Cadman, 2018 BCCA 100 and R. v. A.E.S., 2018 BCCA 478.

[75]      Section 11(i) of the Canadian Charter of Rights and Freedoms provides that:

[76]      The BC Court of Appeal in both Cadman and A.E.S. approved the imposition of CSOs in those cases as being the benefit of the lesser punishment as required by Charter s. 11(i).

[77]      However on November 16, 2020, after the case at bar was argued, counsel for the accused properly advised the Judicial Case Manager in writing, copied to Crown counsel, that in light of the Supreme Court of Canada decision in R. v. Poulin, [2019] SCJ No 47, 2019 SCC 47, counsel was no longer seeking a CSO and was abandoning that argument.

[78]      The introduction to the reasons of the majority in Poulin, given by Justice Martin, set out these words at para. 3 and following:

[79]      Counsel for the offender took the position that the “upward shift” in sentencing law on sexual offences against children represented by R. v. Friesen should not be applied to R.O. under the same principles; that he should have the benefit of the a pre-Friesen punishment. Counsel stated this argument was not being abandoned.

[80]      This issue was considered in R. v. W.J., [2016] B.C.J. No. 195, a decision of Justice G.K. Macintosh in the course of sentence proceedings where the accused had been convicted of touching a child for a sexual purpose when the complainant, a grown woman, was 4 years of age.

[81]      The accused in that case relied on Charter s. 11(i) and submitted that the court should rely on sentencing case law decided only up to the time of the offence, in that case 1996 – 1997, instead of more recent case law.

[82]      Justice Macintosh observed at para. 7 that:

[83]      The court went on to say at paras. 8 and 9:

[84]      This reasoning is consistent with that found in R. v. Poulin. As quoted above:

[85]      The last case I want to mention on this issue is R. v. Williams 2020 BCCA 286. Mr. Williams pleaded guilty to two counts of sexual interference and received sentence of six and a half years, less credit for pre-sentence custody. The Court of Appeal reduced his custodial sentence to 4 years.

[86]      The Crown sought leave to appeal to the Supreme Court of Canada. Supreme Court Justice Abella remanded the case to the Court of Appeal “for disposition in accordance with R. v. Friesen, 2020 SCC 9”. Thereafter the appeal from the custodial sentence imposed by the sentencing judge was dismissed unanimously by the Court of Appeal.

[87]      Determining a just and appropriate sentence in any case is a highly individualised process which must take into account the principles, purposes and objectives of sentencing as well as the aggravating and mitigating circumstances of the case. The range of factors that may be considered are set out in Part XXIII of the Criminal Code and in the decisions of Canadian courts applying the law in individual cases, including R. v. Friesen.

[88]      The fundamental sentencing principle is found at s. 718.1 of the Code: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Section 718.2(b) of the Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[89]      The significant factors in this case are discussed above and include the gravity of the offence, the profound wrongfulness and harmfulness of sexual offences against children, the life-long impact on this victim who was a child in primary school at the commencement of a period of prolonged offending, the Indigenous background of the offender, the Gladue factors present in his life, the age and circumstances of the offender and the need for treatment and rehabilitation where possible.

[90]      There are also the factors listed in Friesen to be considered as set out above, including breach of trust as an adult family member dealing with a young and vulnerable child.

[91]      R.O., would you please stand? It is my view, considering all that has been put before me, that an appropriate and just sentence in this matter is one of 4 years.

[92]      There will also be ancillary orders to the following effect: