IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         B.L.J. (Mr. J.) is before the Court for sentencing following a trial. On June 13, 2022, this Court convicted him of the following sexual offences:

[2]         The offences happened over the course of four incidents when the victim, D., was between the ages of 6 to 11. Mr. J. is D.’s great-uncle. At the relevant time, Mr. J. was in his late 40’s to his early 50’s. At trial, D. was 24 and Mr. J. was 65.

[3]         On May 1, 2008, there was a change in the legislation, one effect of which saw the maximum sentence increased from 10 years to 14 years (for ss. 151 and 152 offences). The 10-year maximum applies to the first three of the four incidents (counts 1-3); the 14-year maximum applies to the last (counts 4-6). For the first three incidents, there was no minimum sentence, whereas a minimum sentence of 45 days applies to the last incident. Mr. J. is entitled to the sentencing regime applicable at the time of the offences by virtue of s. 11(i) of the Charter. Moreover, in light of the principle articulated in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 SCR 729, this Court has previously entered a conditional stay on the s. 271 offences (counts 3 and 6).

[4]         The full details of the case are contained in an earlier trial decision R. v. B.L.J. 2022 BCPC 145. While the analysis in that judgment referred to them as allegations, I have now found them to have occurred beyond any reasonable doubt. As such, I will simply quote from that summary at paras. 4-7:

[5]         Mr. J. is now 65 years old. At the time of the offences, he was in his late 40’s and early 50’s. Up until the current charges being laid in 2020, Mr. J. lived in a little house on his mother’s property. When his offending came to light, his extended family essentially terminated their relationship with him, including his own children. He was no longer welcome to live on the family property. He then spent a period of time living in his pick-up truck with his common law partner. A few months ago, he was able to retrieve his trailer out of storage. He now lives in this trailer with his common law partner at the transport yard where he works as a security guard.

[6]         Mr. J. left school when he was in grade 10 and has been steadily employed since. He has worked as a ranch hand, mechanic, taxi driver, bus driver, business owner, and flagger. Since his extended family estranged him and evicted him from the property, Mr. J. has fallen on hard financial times. In part due to his housing situation, he did not have the funds to keep his flagging certification current. As a result, he lost that employment as well as much of his possessions, presumably to meet his living expenses. He recently found work as a security guard at a transport yard.

[7]         Despite his relationship with his extended family having been soured, he still has the support of his common law partner of 14 years, as well as her son from a previous relationship. There is also a family friend who continues to be supportive of him. Mr. J. has some Métis heritage but Métis culture does not appear to play a part of Mr. J.’s life.

[8]         A pre-sentence report and a psychiatric assessment were prepared. During the interviewing process, and indeed during the sentencing hearing, Mr. J. continues to deny the index offences. Dr. Hodelet opined that this is likely a coping mechanism. Mr. J. remains of the opinion that this whole saga has been orchestrated by D.’s brother with whom Mr. J. has had a strained relationship over the years. Mr. J. does not otherwise have any mental health issues or substance addiction difficulties. He himself had not been subject of any abuse or trauma. The risk of his re-offending was described as “low and not imminent”.

[9]         The principles that play a dominant role at this sentencing hearing are that of general deterrence, denunciation and proportionality. In the opening paragraphs of R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada started the judgment with this pressing message. At para. 1, the court said:

[10]      And then at para. 5:

[11]      While there are other principles that come to play, such as rehabilitation, totality, and restraint, the dominant ones remain those I have cited above. The call to action in Friesen mandates nothing less.

[12]      On behalf of the Crown, Mr. Blumenkrans says that the proper range of sentence is between 6 to 8 years globally. In light of the aggravating features in this case, Mr. J. should be sentenced at the upper end of that range.

[13]      Throughout her submissions, Ms. McPheeters submitted that, in light of the features in this case that are not as aggravating as some other cases, the proper range is that of 3 to 5 years. She asked the Court to impose a sentence toward the lower end of that range. Just as Ms. McPheeters was about to conclude her submissions, however, Mr. J. instructed his counsel to seek a sentence to be served within the community pursuant to a Conditional Sentence Order. The defence acknowledges, however, that a Conditional Sentence is not available for the s. 151 and s. 152 offences that occurred after May 1, 2008 since there was a minimum sentence of 45 days.

[14]      There are a number of aggravating circumstances. Firstly, Mr. J. was in a position of trust vis-à-vis with D. When she was very young, her father had passed away. Raising 5 children on her own meant that D.’s mother had to work a few jobs and often long hours to make ends meet. In that context, Mr. J. babysat D. with some regularity when she was 6 or 7 years old, upwards of 10-15 times per month.

[15]      In Friesen at para. 125, the Supreme Court of Canada reinforced the concept that a relationship of trust exists on a spectrum, and there will be varying degrees to that trust. In this case, the level of trust placed on Mr. J. is at the higher end of the spectrum. D. was only 6 or 7 years old. Her mother had to work to provide for the family. There was a strong reliance placed upon Mr. J. to provide care for D. and protect her from harm. While Mr. J. was not himself D.’s parent, and that they did not live together, the level of trust in the case at bar was nevertheless very high. A violation of that trust in this manner is extremely aggravating.

[16]      It is further aggravating that D. was 6 or 7 years old when Mr. J. sexually offended against her on three occasions. The power imbalance that existed in this case was total in that D. was entirely dependent on Mr. J. at that tender age. Her personality, sense of self, will, and ability to recover from harm had only begun to develop. This rendered her extremely vulnerable. And the fact that the offences happened at such an early age meant that D. must endure the consequential harm of sexual violence for a longer period of time. The offences also happened at Mr. J.’s residence where he was babysitting D. – a place where D. should have been entitled to feel safe. Subsequent to the offences, D. no longer wished to return to that family property, resulting in additional suffering in her family life.

[17]      Further, the degree of physical interference was extreme. In Friesen, the Supreme Court of Canada provided a new framework within which to analyze the “degree of physical interference”. Specifically, the Supreme Court warned against any hierarchy of physical acts. It is an error to downgrade the severity of an offence just because the act did not involve penile penetration, for example. Other types of activities that have traditionally been thought of as less intrusive could be equally harmful and worthy of the same level of denunciation and punishment. All that being said, it cannot be denied that what happened here amounted to a very high level of physical interference. On the first three occasions, Mr. J. interfered with D.’s vagina with his hand, mouth and/or penis. On the first two occasions, he penetrated D.’s vagina with his penis to the point of ejaculation. D. still recalled that, on the first occasion, it hurt her to urinate afterward. On the second occasion, she experienced pain as her underwear was rubbing against her as she walked. D. was 6 years old during these incidents.

[18]      Another aggravating factor lies in the fact that, during the third incident, Mr. J. also offended against D.’s friend, B. B. is the same age as D. and Mr. J. also babysat B. with some regularity at the material time.

[19]      Additionally, Mr. J. showed D. pornography before the second incident. This was an attempt to normalize the sexual offence that was about to take place and likely increased the psychological harm that flowed from these transgressions.

[20]      Moreover, Mr. J. offended against D. on four occasions: three times when she was 6 or 7, and once when she was 11. The repeated nature of this conduct is aggravating. And to whatever degree, if any, she had begun to heal after the first three offences, Mr. J. robbed her of that and re-offended against her when she was 11. All that could be said under this heading is that the offending was not as frequent or as prolonged than in some other cases in the jurisprudence. Be that as it may, it is still aggravating that Mr. J. offended on four occasions. It certainly is not mitigating.

[21]      Section 718.2(a)(iii.1) also requires the Court to take into consideration the impact Mr. J.’s assaults have had on D. To this end, D. had written a powerful victim impact statement. In it, she described how her relationship with her family had been destroyed. She suffers from depression, anxiety and flashbacks. She lost jobs because of the panic attacks. And the long term harm of Mr. J.’s offending continues to this day. She writes:

[22]      The Court had occasion to witness first hand the enduring effect of Mr. J.’s conduct. During her evidence at trial, while D. testified overall in a very resilient fashion, the trauma of having to look at the photographs of Mr. J.’s penis was palpably evident, even through the television screen.

[23]      Mr. J. has consistently been gainfully employed in his adult life. While he lost much of his family as a result of being charged for these offences, he still has the support of his common law partner, her son, as well as one other family friend.

[24]      In the psychiatric assessment, Mr. J. was found to be a low risk to reoffend, based on the fact that there is no evidence of any further offending in the last 14 or so years. As such, protection of the public is much less of a concern with Mr. J. as it would be with some other offenders.

[25]      Mr. J. does have a criminal record. However, it is largely dated and mostly unrelated. His last conviction was in 1987 for impaired driving. He was previously convicted of “assault causing bodily harm” in 1979. Defence counsel acknowledged that this is not so much mitigating, but at the same time, his record is not particularly aggravating either.

[26]      It is trite to say that sentencing is the most individualized process in the criminal justice system. Each case will depend on its own facts and offender and no two cases will be exactly alike. The exercise of comparing two cases will inevitably reveal some features that are more aggravating, and some less. However, the principle of parity does require the Court to treat similar offenders who committed similar offences under similar circumstances similarly (see s. 718.2(b)). Indeed, the principles of parity and proportionality work hand in hand. At para. 33 of Friesen, the Supreme Court explains:

[27]      To that end, Mr. Blumenkrans relies on a number of cases that bear some semblance to the case at bar. Ms. McPheeters does not take issue with the authorities provided and agrees that it is a fair representation of the post-Friesen jurisprudence. In his sentencing brief, Mr. Blumenkrans very helpfully summarized those cases as follows:

[28]      In addition, the Court had an opportunity to review some other reported cases on its own accord. In R. v. J.S.S., 2022 BCPC 96, the accused pled guilty to sexually interfering with his daughter. The offences happened when the victim was between 6 and 11 years old. The acts included forced masturbation, forced oral sex, and digital penetration. The abuse happened a few times a month over this 5 year period. The court imposed an 8 year sentence.

[29]      In arriving at his conclusion, Judge Koturbash also did a canvass of the relevant post-Friesen jurisprudence. At para. 60 of J.S.S., he summarized those as follows:

[30]      I pause here to say that it is singularly depressing seeing how many reported cases there are to canvass when doing this research. This feeling worsens with the realization that reported cases are necessarily a small subset of all cases that come before the courts, which are themselves but a small fraction of the true incidence of sexual offending against children in our communities.

[31]      In the case at bar, the aggravating circumstances far outweigh the mitigating ones. The age of D., the degree to which her body was interfered with, the impact the offences had on her, the relationship of trust that existed, and the repeated nature of the offending, all call out for a lengthy penitentiary term in order to properly address the principles of denunciation, general deterrence, and proportionality. In my view, the range of 6-8 years submitted by the Crown is much closer to the mark than the 3-5 proposed by defence counsel. A Conditional Sentence in this case would be demonstrably unfit and completely at odds with the lessons from Friesen.

[32]      At the end of the day, the Court cannot justify a sentence less than the 6 years Mr. Friesen received. In fact, Mr. J.’s case calls out for a longer sentence, not shorter. Mr. Friesen was not in a position of trust in relation to his victim. His offence occurred on one occasion. And he pled guilty to the offences. To be sure, as is inevitably the case, there are features which aggravated the circumstances in that case, including the fact that Mr. Friesen was at a high risk to reoffend, he extorted the victim’s mother, and the victim was slightly younger than D. was. But on balance, I do not see Mr. J. as any less morally culpable than Mr. Friesen. This is also not to say that Mr. J. should be punished for not having pled guilty. Everyone has a constitutional right to a fair trial – not just those who are innocent. But in this case, there is no mitigating factor of a guilty plea, as we saw in Friesen and some of the other cases cited. D. was required to relive her trauma in a very public forum.

[33]      Consequently, taking all of the above principles, case law, and circumstances into account, a fit global sentence is that of 7 years. This will apply to Counts 1 and 2. The circumstances of the fourth incident were slightly less aggravating than the first three in that D. was slightly older, Mr. J. was not babysitting her at the time, and the degree of physical interference was not as significant. Accordingly, Counts 4 and 5 will result in sentences of 5 years. The principle of totality compels the Court to impose concurrent sentences on all offences so that the overall sentence would not be unduly long or harsh.

[34]      In summary, the Court imposes the following sentences:

[35]      There will be a DNA order, a Sex Offender Information Registration Act (SOIRA) order as well as a s. 109 weapons prohibition. I decline to make any no contact order pursuant to s. 743.21 given that Mr. J. has observed his bail conditions since his arrest with no difficulty. I also decline to make any order under s. 161 of the Criminal Code given the nature of the offences before the Court and the psychiatric opinion of him being at a low risk to reoffend.