IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         T.J.B.J. has been convicted of sexual invitation and sexual touching. The two charges both stem from two incidents between October 2008 and October 2010 involving the accused’s preschool-aged male cousin. Sentencing was adjourned to obtain a pre-sentence report with a Gladue component and a psychiatric risk assessment.

[2]         The court also has the benefit of a Victim Impact Statement from the parents of the victim. This Victim Impact Statement details the unfortunately too-common and long-term emotional harm that has been caused to both the victim and his immediate family.

[3]         The pre-sentence report writer contacted the accused and his parents. The report reveals the accused had a difficult upbringing because of his father’s alcohol use. The accused has had no long-term relationships with women. The accused’s mother believes him to be innocent of all past and present charges. The accused’s father stated he does not believe his son “did these things”. The accused continues to deny the offences in this information. The pre-sentence report notes sexual contact initiated by a similar-aged cousin with the accused occurred when he was approximately seven years of age. The accused completed grade 12 in 2006. He is currently unemployed and has a limited work history.

[4]         The accused has the following related criminal records:

[5]         The pre-sentence report states that the accused completed the Forensic Sex Offender Program in 2013 and it was noted by the supervising psychologist that the accused showed insight. The probation supervisor reported that the accused has consistently reported and self-reports that he has been sober from alcohol since December 2017.

[6]         The forensic psychological assessment concluded that the accused is of moderate risk to reoffend. That was based on his problems with intimate and non-intimate relationships, problems resulting from suffering child abuse, sexual deviance and attitudes supportive of sexual activity with children. At page eight, the report noted “the ‘new’ convictions do not indicate that he reoffended after becoming involved with the criminal justice system.” These “new” convictions are the ones currently before the court.

[7]         The Crown relied on a number of cases. The first was R. v. Friesen, 2020 SCC 9. Paragraph 5 reads:

[8]         The second case relied on by the Crown was R. v. N.S.N.C., 2020 BCSC 1843. Paragraph 47 referred to the Friesen decision and stated, “the range of sentences in circumstances involving one or two distinct sexual assaults against a young child involving an abuse of trust or authority, is in the range of two to five years.”

[9]         The third case relied on by the Crown was R. v. Williams, 2020 BCCA 286. In paragraph 52, the court held that:

[10]      The fourth case relied on by the Crown was R. v. Polay, 2021 BCSC 1872. In paragraph 48, the court held that the Friesen case applied to offences that occurred before the release of the Supreme Court of Canada’s decision. Reference was also made at paragraph 54 to the totality principle, holding that it does not operate to reduce the sentence for an offence that was committed at a similar time to other offences for which the offender has already been sentenced. Such is the case here.

[11]      The Crown then cited five other British Columbia Supreme Court cases along with N.S.N.C. that imposed sentences ranging between three and seven years for sexual offences against children. These cases were decided after Friesen and refer to it.

[12]      The defence argued that each of the Crown’s sentencing precedents should be distinguished on its facts. It was pointed out that, as stated in paragraph 37 of Friesen, ranges and starting points are only guidelines.

[13]      The defence stressed that reduced moral culpability as explained in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, and R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433, must be considered along with deterrence and denunciation. This is true.

[14]      The defence relied on R. v. Allen, 2012 BCCA 377. Paragraph 59 of that decision explains the “primary importance” of denunciation and submits that, while denunciation is of primary importance, it does not eliminate the consideration of other factors. This is true.

[15]      The defence reinforced the need for proportionality by reference to R. v. Anderson, 1992 CanLII 6002 (BC CA). Paragraph 35 reads:

[16]      The defence also relied on R. v. Horvath, 1997 CanLII 9759 (SK CA), for the principle that general deterrence of others “has very little or no role to play in a decision about where a pathological gambler should serve his or her sentence of imprisonment.” The defence also cited R. v. Hilbach, 2019 BCPC 73, which adopts the Horvath decision’s scepticism of general deterrence.

[17]      The defence relied on R. v. Thompson, 1989 ABCA 212. In the second paragraph on page four, the court notes that self-reform between the date of the offence and the date of sentencing is a mitigating factor. Reference is also made to paragraph 45 of Anderson where it states:

[18]      In the case at hand, remorse is absent as the accused maintains that he did not commit the offences of which he was convicted.

[19]      The self-imposed abstinence from alcohol since he was sentenced in 2017 does reduce his risk to reoffend.

[20]      The defence also relied on R. v. Angelillo, 2006 SCC 55. Paragraph 24 reads:

[21]      The relevant principles of sentencing are laid out in sections 718, 718.01, 718.1, and 718.2 of the Criminal Code. The relevant factors in s. 718 are: denunciation; deterrence; separation of the offender from society; rehabilitation; reparations; promotion of a sense of responsibility in the offender; and, acknowledgement of the harm done to the victims and community.

[22]      Section 718.01 reads:

[23]      Section 718.1 reads, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[24]      Section 718.2 requires the court to consider aggravating and mitigating circumstances that include:

[25]      Section 718.2(b) instructs the court that sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[26]      Section 718.2(e) instructs the court that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims, or in the community, should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[27]      In R. v. G.M., 2015 BCCA 165, our Court of Appeal at paragraph 17 states that denunciation and deterrence are the paramount objectives in sentencing child sexual abuse cases.

[28]      In R. v. Stuckless, 1998 CanLII 7143 (ON CA), the Ontario Court of Appeal states, “Sexual abuse is an act of violence. When committed against children, the violence is both physical and profoundly psychological.”

[29]      In R. v. G.E.W., 2014 BCSC 2597, at paragraph 65, Mr. Justice Myers states, “The sentencing range for aboriginal offenders involving sexual interference with breach of trust is the five to eight-year range”. In that case, the offender himself was the victim of serious harm in the residential school system. The sentence of seven years is distinguishable on its facts as the case included incest with two daughters as well as offences under section 151.

[30]      In R. v. K.R.J., 2014 BCCA 382, in paragraph 33, it is noted “that the Court has signalled a preparedness to accept more severe sentences for sexual abuse of children than may have been imposed in the past.”

[31]      In R. v. T.P.C., 2000 BCSC 742, at paragraph 16, Mr. Justice Romilly, quoting Otis J.A. in R. v. L.(J.J.), 1998 CanLII 12722 (QC CA), lists some factors to be considered in sentencing of sexual offences.

[32]      The first factor listed is the “nature and intrinsic gravity of the offences which is affected by, in particular, the use of threats, violence, psychological threats and manipulation, etc.” In the case at hand, we have the use of physical violence to hold the victim down and psychological violence in issuing a warning to the child that if he disclosed, it would “rip their family apart.”

[33]      The second factor listed in T.P.C. is the frequency and timeframe of the offences. In the case at hand, two incidents occurred in approximately two years.

[34]      The third factor listed in T.P.C. is the abuse of trust or authority. In this case, there was a clear breach of the trust relationship that society expects from a blood relative who often lived with the victim’s family and was trusted to babysit him.

[35]      The fourth factor is “underlying disorders in the offender”. No such disorders are disclosed in the psychological assessment.

[36]      The fifth factor listed in T.P.C. is previous convictions. As noted above, the formal convictions for earlier offences were not entered until after the dates of these offences. As per R. v. Andrade, 2010 NBCA 62, in paragraph 20, the Coke rule is applicable only to mandatory sentences that are required because of previous convictions. The court held “what is or is not an aggravating factor and how one should deal with the offender’s prior criminal record is a matter better left to the sentencing judge having regard to the factual matrix under consideration.”

[37]      The sixth factor is the offender’s behavior since the commission of the offence such as confessions, collaboration in the investigation, the immediate involvement in a treatment programme, and empathy for the victim. This is related but not identical to the “self-reform” suggested by the defence as laid out in Anderson.

[38]      The eighth and final factor listed in T.P.C. is the effect on the character of the victim and lingering effects of the abuse. In the case at hand, the victim’s father testified that there was a marked change in his son after the incidents. He described the child as changing from a happy little boy to someone who was angry, depressed and lacking in self-esteem.

[39]      The maximum sentence for both section 151 and section 152 was14 years between 2008 and 2010.

[40]      The Crown has suggested a sentence of 5 years.

[41]      The defence has suggested a sentence of 2.5 years.

[42]      The current range of sentence is unclear, although both Crown and defence submit that a penitentiary sentence is applicable. It is clear that Parliament and the courts have been consistently increasing the sentences for child sexual abuse.

[43]      Mr. Justice Johnson sums it up well in paragraph 38 of R. v. Leung, 2016 BCSC 214. He writes:

[44]      Proportionality remains as the fundamental principle.

[45]      There are aggravating factors:

[46]      There are mitigating factors:

[47]      After consideration of all the evidence, case law and submissions presented at the sentencing hearing, I conclude the appropriate sentence should be five years in gaol on each charge, to be served concurrently.

[48]      In addition to the custodial sentence, I make the following ancillary orders:

[49]      On Information 26244, which is a guilty plea to driving while prohibited in July 2021, I sentence you to 14 days in gaol consecutive to all other sentences.

[50]      On Information 26333, which is a guilty plea to driving while prohibited in October 2021, I sentence you to 14 days in gaol consecutive to all other sentences.

[51]      Paragraph [24], quoting s. 718.2(a) (ii), (ii.1) and (iii.1) of the CCC, subparagraph (iii.1) has been amended to:

[52]      Paragraph [41], has been amended to: “The defence has suggested a sentence of 2.5 years.”

[53]      Paragraph [45], the third bullet, which included the statement “The accused was in a position of trust”, was amended so that this statement now stands alone as the fourth bullet.