IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         J.R.N. was originally charged with sexual assault (Count 1), sexual interference (Counts 2 and 3) and communicating with a person under the age of 16 years to facilitate the offence of sexual interference (Count 4).  The offence is alleged to have occurred between July 1, 2019 and September 3, 2019.  The victim was 13 year old M.L.

[2]         On the second day of trial, J.R.N. pleaded guilty to Count 2 on the Information that being sexual interference of M.L. contrary to s. 151 of the Criminal Code.

[3]         Crown seeks jail between 4 to 6 months and probation for 18 months.  Crown also seeks ancillary orders: an order that J.R.N. comply with the SOIRA (primary grounds) and a s. 161 prohibition order for 3 years;

[4]         J.R.N. says a fit sentence is a conditional sentence order from 6 to 9 months to be served in the community but under house arrest, followed by probation for 2 years.  However, he says that if I am of the view that a carceral sentence is required, he asks for a 90 day sentence which can be served intermittently on weekends in Nanaimo.

[5]         J.R.N. was 30 years old at the time.  M.L. was 13 years old.  They had three interactions over the material period of time. 

[6]         The events that occurred the first time J.R.N. met M.L. are not the subject of charges but I summarize the circumstances to explain the background.  M.L. and her girlfriend were walking home late from a party.  M.L. saw a car parked near the liquor store and because she knew the driver, asked for a ride home.  The two girls got into the car and M.L. ended up sitting beside J.R.N. in the back seat.  M.L. told him she was 19.  J.R.N. rubbed her leg and asked her to come home with him.  He asked her for a kiss.  She declined both invitations.

[7]         A few days later, J.R.N. added her to his Facebook page and through that social media struck up communications.  He asked her to go camping and asked her to go to his place and get drunk with him.  M.L. told him at that point that she was only 13 years old.

[8]         J.R.N. happened to be friends with M.L.’s mother.  She found out about the communications and told him to stay away from her daughter.

[9]         Sometime later, J.R.N. met M.L. again but this time it was to sell marijuana to her.  They met on a dead end road in J.R.N.’s truck.  He told her she could pay him by giving him a kiss which she did not do.  When she got out of the truck, he told her that she owed him.

[10]      J.R.N. arranged to meet M.L. again on the same dead end road to sell marijuana to her.  This time, he grabbed her face and kissed her.

[11]      The final time the two met was in August 2019.  The meeting was arranged so that J.R.N. could sell marijuana and liquor to M.L. for a party she was going to the next day.  The meeting took place at about 2 am near a church.  J.R.N. told M.L. that she really owed him.  He unbuckled his pants, exposed his penis to M.L. and wanted her to perform fellatio on him.  He placed his hands on her shoulders and tried to push her down to her knees.   She was able to prevent falling to her knees and did not touch his penis.

[12]      Counsel referred me to sentencing decisions involving sexual offences against children from other courts to assist me in determining a fit and just sentence in this case.

[13]      Because a sentence must be specifically tailored to the particular offender and the particular circumstances of the offence, the cases are helpful primarily for their general principles.  It is also accepted that ranges are only that - guidelines for the sentencing judge who must impose a sentence that is appropriate in the circumstances of the case under consideration.

[14]      A sentence must serve a number of objectives: an expression of the community’s disapproval of the person’s actions (denunciation), prevention of other similar offences by the person (specific deterrence), prevention of others from offending in a similar way (general deterrence), rehabilitation of the offender, encouraging the offender to take responsibility for their actions and make reparation for the harm caused.

[15]      A sentence must also properly reflect the seriousness of the offence and the offender’s own level of moral culpability, keeping in mind that a sentence should be similar to sentences imposed in similar circumstances upon other offenders so there is consistency; a sentence should not be overly harsh and all alternatives other than jail should be considered. 

[16]      Aggravating factors tending to increase a sentence as well as mitigating factors tending to decrease a sentence must be considered.

[17]      A sentence must not be based upon sympathy or outrage, but must properly reflect and achieve the objectives of a sentence as expressed in our laws.

[18]      Sentencing guidelines were revisited by The Supreme Court of Canada in R. v. Friesen 2020 SCC 9.  The Court was very clear and explicit that sentences for sexual offences involving children, including offences of sexual interference, must increase to reflect the serious potential and actual harm to children and the wrongfulness of these offences (para 76).  Sexual offences against children will attract greater punishment precisely because they are vulnerable to exploitation by an adult.  The Court in Friesen also noted the sad fact that “children are disproportionately vulnerable to sexual offences and that girls and young women are disproportionately victimized relative to boys.” (para 54).

[19]      Furthermore, lest people consider that this type of offending is rare, the Court also cited statistics that in Canada “… both the overall number of police-reported sexual violations against children and police-reported child luring incidents more than doubled between 2010 and 2017...”.  The number of actual offences are clearly understated (para 46), likely because many victims never report them.

[20]      While all objectives of sentencing must be considered, weighed and balanced in accordance with gravity of the offence and the moral blameworthiness of the offender, denunciation and deterrence must be given primary consideration for sexual offences against children.  

[21]      With the legal framework in mind, I turn back to the circumstances of this case and J.R.N.

[22]      J.R.N. is now 33 years of age.  He was struggling with the breakdown of a relationship and had lost his job around the time of these events.  He was seriously depressed and turned to alcohol and cocaine to self-medicate which then spiralled into an addiction.

[23]      His parents separated when he was a young child and I accept that the circumstances he was placed in as a young child were difficult for him.  He started acting out and drinking around the age of 11 or 12 and dropped out of school in Grade 10. 

[24]      He went to work as a labourer at the young age of 16 or 17 years.  He has worked in many different jobs including roofing, cooking and commercial fishing but has had a difficult time holding down steady employment.  He suffers from chronic back pain due to a work related injury and has other medical conditions including ulcers, kidney stones and heartburn.

[25]      Since the offence, he has been medically diagnosed with depression and is receiving medication for that as well as for anxiety.

[26]      It is a mitigating factor that J.R.N. has pleaded guilty and spared M.L. the trauma of having to testify in court.  He has not been convicted of a similar offence previously.  He is in another relationship and is engaged to a woman who has a 5 year old daughter.

[27]      There are a number of aggravating factors.  J.R.N. was significantly older than M.L.  He continued to communicate with M.L. even after M.L. told him she was 13 and M.L.’s mother told him to stay away from her daughter.  Most aggravating is that he used and exploited his ability to provide and sell marijuana and liquor as a means of attempting to obtain sexual gratification from this young girl.  I do not know much about M.L. but conclude that she was a vulnerable girl who was likely having significant challenges of her own.  She was drinking and smoking marijuana at the very young age of 13, going home very late and attending parties involving drinking and smoking marijuana. 

[28]      I do not have an impact statement from M.L. but still conclude that these events would have been troubling and traumatic for a young girl of that age.  As was recognized by the court in Friesen, it is also extremely common for victims of these offences to feel shame which can carry over into adult life for a long time. 

[29]      This was not a one-time event.  J.R.N. supplied and sold alcohol and/or marijuana to M.L. on 3 separate occasions and at the same time tried to obtain sexual favours from M.L.  Over that time his behaviour escalated from asking for a kiss, to forcibly kissing M.L to exposing himself and trying to push her onto her knees to fellate him.

[30]      It appears that his new relationship with the woman to whom he is engaged has been good for him.  He says he has gained weight, is healthier and she has encouraged him to start a back yard boat mechanic business.  As a result of these charges, MCFD is involved with them and are working with J.R.N. in a sexual offender reintegration program.  Currently, his fiancé and her daughter must leave J.R.N.’s home by 8 pm every night and they are not allowed to reside together.  I expect the safety plan likely includes a condition that J.R.N. not be alone with her daughter.

[31]      It is very difficult for me to assess J.R.N.’s risk of future offending.  J.R.N. says he was not rational and not making rational decisions at the time and has no explanation for his conduct except that he was using cocaine and alcohol excessively due to issues in his life.

[32]      No reports or assessments have been provided to give me more insight into J.R.N. and his reasons for committing this offence.  J.R.N. has just started seeing a counsellor but only a few times and only about one month before the sentencing hearing took place.  There is no evidence that he has been assessed or treated in the intervening 3 years since the offence.

[33]      I have reviewed the letters provided by J.R.N.’s fiancé.  She speaks of how helpful he is and that she needs his assistance at home.  She described that J.R.N. is also very helpful to people in the community.  It is apparent from J.R.N.’s statement to the police that he was in a relationship with her at the time of these offences.  I also reviewed the letters from his father and mother and have considered those in reaching my decision.

[34]      Friesen is clear that sexual interference offences must be treated as serious offences and not considered as lower on the scale of sexual offending.

[35]      This was a serious offence.  His moral culpability is significant.  He used his ability to provide and sell marijuana and alcohol to an extremely vulnerable 13 year old girl as a means of trying to coerce sexual favours from her.  This is nothing less than exploitation of a 13 year old girl for his own sexual gratification.  Denunciation and deterrence must take priority to other sentencing objectives.

[36]      I have considered whether a conditional sentence order can provide the degree of denunciatory or deterrent effect necessary in this case.  I find it does not.  Furthermore, I am not satisfied that allowing J.R.N. to serve a sentence in the community would not endanger the community.  As far as I am aware, he has had no treatment.  He has no insight into his offending.  Young girls in the community are at risk until his reasons for offending are addressed professionally.

[37]      A fit sentence in all these circumstances requires a carceral sentence.  I have reviewed all the cases provided by counsel.  Many involved more serious allegations but were provided for the review of sentencing law in cases such as this.

[38]      I conclude that a fit sentence is 6 months which is the top of the range suggested by Crown.  I recommend that he serve this sentence at the Ford Mountain Correctional Centre where he will be given specialized treatment aimed at his rehabilitation which, if successful, will accomplish the goal of protecting young girls from sexual exploitation by J.R.N.

[39]      This will be followed by a period of probation for 24 months with the following conditions: 

[40]      I impose the mandatory SOIRA order for 10 years.  I am not satisfied that a s. 110 order is necessary to protect the public.  There will be a DNA order on primary grounds and a sample of his DNA will be taken while in custody.  Based on the conditions I have given in the probation order, I decline to make a s. 161 prohibition order.  The victim surcharge is waived for undue hardship.