R. v. Zerbin, 2023 BCPC 54 (CanLII)
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2023 BCPC 54 |
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Date: |
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File No: |
182084-1 |
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Registry: |
Victoria |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REX
v.
JASON JONATHAN ERIC ZERBIN
PUBLICATION BAN PURSUANT
TO s. 486.3(1)
OF THE CANADIAN CRIMINAL CODE
REASONS FOR SENTENCE
OF THE
HONOURABLE JUDGE GOUGE
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Counsel for the Crown: |
O. Kuzma, K.C. |
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Counsel for the Defendant: |
R.M. Wood |
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Place of Hearing: |
Victoria, B.C. |
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Dates of Hearing: |
October 17, 2022; February 13, 2023 |
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Date of Judgment: |
March 24, 2023 |
The Issues
[1] On May 10, 2022, I convicted Mr. Zerbin of a single count of sexual assault. I must now determine a fit sentence for that offence. Mr. Kuzma, for the Crown, seeks a 3–month conditional sentence, followed by a period of probation. Ms. Wood, for Mr. Zerbin, submits that a conditional discharge and a period of probation would be appropriate.
[2] Sexual assault is a “designated offence” under section 490.011 of the Criminal Code. Having convicted Mr. Zerbin of that offence, section 490.012(1) requires me to make an order compelling Mr. Zerbin to comply with the Sex Offender Information Registration Act (“SOIRA”). The Crown proceeded summarily in this case. As a consequence, section 490.013(2) of the Criminal Code requires that Mr. Zerbin comply with SOIRA for a period of 10 years.
[3] In R .v. Ndhlovu 2022 SCC 38, the Court declared that section 490.012 of the Criminal Code violates section 7 of the Canadian Charter of Rights & Freedoms and is of no force and effect. At paragraphs 138 - 140 of the decision, the majority of the Court suspended the declaration until October 28, 2023. At paragraph 140, the majority made it plain that the declaration was prospective; i.e. that section 490.12, despite its constitutional flaws, continues in effect until October 28, 2023. I refer to the discussion of prospective and retrospective declarations of invalidity, found in R. v. Albashir 2021 SCC 48 at paragraph 46.
[4] At paragraph 140 of Ndhlovu, the majority of the Court said that a person who is registered under SOIRA could apply for an “individual remedy” under section 24 of the Charter.
[5] Ms. Wood submits that section 490.12 of the Criminal Code infringes Mr. Zerbin’s Charter rights. She is clearly right about that - the majority of the Court said so in Ndhlovu. She says that the appropriate remedy for that infringement is to excuse him from the obligation to comply with SOIRA, and asks that I make an order to that effect. As explained in paragraphs 36 - 40, below, I have concluded that the decision in Ndhlovu precludes such an order.
[6] There is an alternate remedy which Mr. Zerbin may wish to pursue. The decision in Ndhlovu permits a person who has been registered under SOIRA to apply to have his registration rescinded. Mr. Zerbin is entitled to pursue such a remedy if he chooses. However, for the reasons given in paragraph 39, below, I have concluded that this court has no jurisdiction to make such an order. The application must be made to a superior court.
The Circumstances of the Offence
[7] At the time of the offence, in May, 2015, Mr. Zerbin was 28 years of age and the victim, B.M. was 18.
[8] Mr. Zerbin and B.M. became acquainted when he was a salaried pastor of a church which she attended.
[9] Mr. Zerbin’s role as pastor ended before the incident in question, but he continued to see B.M. socially after his role as pastor ended.
[10] On the day in question, Mr. Zerbin and B.M. attended with a group of other church members at a beach in Sooke, British Columbia for a picnic. Wine was served. During the course of the evening, Mr. Zerbin lay down with B.M. under a blanket. He put his hand on B.M.’s hip, then down the front of her pants to her pubic area and rubbed her genitals through her underwear. B.M. rolled away from him, and he stopped touching her immediately.
[11] In August, 2015, Mr. Zerbin sent an e-mail to B.M. and her parents, in which he said:
… I am deeply and truly sorry. … I have felt a depth of embarrassment [sic], shame and remorse over my actions and the hurt that it caused you …
The Offender
[12] Mr. Zerbin is now 35 years of age. He has no criminal record. He has tendered 15 letters of support from friends, colleagues and family members, all of whom describe him as a man of good character and many fine qualities.
[13] Mr. Zerbin grew up in a fundamentalist Christian family, and was subjected to physical discipline in his early years. After graduating high school, he attended a bible college and later earned a Master’s degree in Global Leadership.
[14] Mr. Zerbin is married, but describes the relationship as an “open” marriage, it being understood that he and his wife may have other sexual relationships during the marriage. He presently lives part-time with his wife and part-time with another person. He describes himself as bisexual.
[15] A Forensic Psychiatric Report was ordered, and was delivered on July 12, 2022. The Report says that:
… Mr. Zerbin was estimated to be at a relatively low risk of sexual re-offending, suggesting a routine need for treatment.
***
Risk estimates should be considered contextual, dynamic and time-limited.
***
… I would recommend reassessment of his mental health on the resolution of his Court matters as the symptoms might reflect a persistent adjustment disorder with mixed anxiety and depressed mood.
[16] Mr. Zerbin has been seeing a counsellor since April, 2021. The counsellor says that he was relatively immature for his age at the time of the offence, but that, since entering counselling, he has “… made strides in his self-regulation during a time of such stress and uncertainty”.
[17] Mr. Zerbin has an interest and some experience in both the technology and music industries, and is the proprietor of a music recording business. Ms. Wood says said that his business requires him to travel internationally, particularly to the U.S.A. At paragraph 29, below, I discuss the absence of evidence on the point.
The Victim
[18] B.M. grew up in a Christian household in northern British Columbia, and was home-schooled until the end of grade 7. She loved to dance, but there were no opportunities for formal dance training in her home community. At age 16, her parents arranged for her to move to Victoria to attend the Victoria Academy of Ballet and finish high school at Victoria High School. Her parents did not accompany her. She boarded for a period of time with her older sister, later with her aunt, and later still in a private home. In her grade 12 year, she joined the congregation of God’s Garden Church in Victoria, of which Mr. Zerbin was then the worship pastor and music director. B.M. attended often at Mr. Zerbin’s home for musical and social gatherings, and sometimes stayed overnight. B.M. described the relationship in the following terms:
We [i.e. Mr. Zerbin, his wife and B.M.] would joke that I was like their adopted child, they were like my Victoria parents. I would eat at their house all the time, I would watch TV there, I would do homework there. I spent a lot of time there, like kind of was like my home away from home.
[19] The following passages are taken from B.M.’s victim impact statement:
After it all happened I didn’t want to see them anymore and I didn’t want people to know what had happened so I left the church, and eventually left my faith completely, and lost my entire community and friend group in a day, which was very destabilizing.
***
In the years following the impact it had on my life was much bigger than I was aware of at the time. I started dealing with anxiety and depression post final incident. … It was definitely one of the lowest years of my life.
***
In the past 7 years, I have dealt with a lot of suicidal ideation and trouble getting out of bed or feeling motivated to do anything. Taking care of myself just hasn’t been a priority and anything I have to do to keep my life in motion or keep myself afloat feels like an insane amount of work or a massive uphill climb.
***
Over the years, I have missed workshops, potential work opportunities, networking opportunities and building relationships because I was unable to leave the house or take on more responsibilities because it felt so overwhelming.
***
Going through the court system has been really hard on my mental and physical health. … I was unable to eat for a couple of weeks and lost a lot of weight, my friends and partner were worried. I would eat one bite of food and then feel immediately nauseous I couldn’t continue. This happened and happens a lot.
The Significance of Victim Impacts
[20] In my view, the recent decision of the Supreme Court of Canada in R. v. Friesen 2020 SCC 9 mandates a new approach to sentencing in sexual assault cases. At paragraph 85, the majority of the Court said:
When possible, courts must consider the actual harm that a specific victim has experienced as a result of the offence. This consequential harm is a key determinant of the gravity of the offence.
(emphasis added)
Section 718.1 of the Criminal Code articulates the “Fundamental Principle” of sentencing in the following terms:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
It follows that a sentence for sexual assault must be proportionate to the gravity of the assault, and that the impact upon the victim is “a key determinant of the gravity of the offence”.
[21] When I read B.M.’s victim impact statement, I was immediately struck by the similarities between her experience and that of the victim in a case which I decided only a few months ago: R. v. C.T.P., 2022 BCPC 185. In that case, the offender was a 25 year-old woman who had vaginal sex with a 15 year-old boy on two occasions. The sex was entirely consensual, but the defence of consent was not open to the offender because of the boy’s age. The following are extracts from the victim impact statement in that case:
After this happened, I stopped caring about life, and I don’t really try anymore. I don’t care what foot goes forward – before I cared about school and my grades, lacrosse but this changed my outlook on that. I started over thinking everything and became an overthinker and I just sit by myself and think about stupid stuff that I can’t control and I feel stuck in those thoughts.
***
This has affected my relationship with my family a lot. I feel like I don’t care about anything. I don’t enjoy things I used to enjoy – like being with my family or friends. I just want to be alone and not deal with things. I get angry faster which means sometimes I fight with my family even if I don’t want to. I just want to isolate.
I really struggle with my self-esteem now. I don’t like myself, all I do is find negatives in everything that I do. I can’t find the positives in anything that I do or anything about myself.
Because of the impacts on my emotional health, it has affected my physical health. I don’t eat much anymore. I have lost so much weight – 20 pounds. I don’t find anything appealing anymore, not even my favourite foods.
***
There’s a lot more that I can add but the most important thing for you to hear is that after this, I hit a wall. I’m lost and confused. I want to care about things in my life, I want to care about anything but I don’t. I don’t have motivation to do anything at all.
[22] Those two victim impact statements demonstrate that sexual assaults often cause serious psychological harm, even when the sex was consensual, as in C.T.P., or, as in this case, when the physical act which constitutes the assault was much less intrusive than in other cases.
Sentences Imposed in Similar Cases
[23] Ms. Wood referred me to a number of similar cases in this court, in which conditional discharges were ordered. They are:
R. v. L.(B.) 2011 BCPC 254
R. v. T.J.H. 2012 BCPC 115
R. v. H.(T.J.), 2012 BCPC 115
R. v. J. L. B., 2017 BCPC 24
R. v. Bougraine 2020 BCPC 267
She referred me also to R v Elmazini 2019 BCSC 41, in which an order for a conditional discharge in circumstances similar those at bar was upheld on appeal. She relies upon section 718.2(b) of the Criminal Code, which provides that “… a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances …”.
[24] My difficulty with the authorities on which Ms. Wood relies is that, in each of those cases, the learned sentencing judge assessed the gravity of the offence primarily by reference to the physical act which constituted the actus reus. In each case, as in the case at bar, the offending action was to touch the victim’s genital area through her clothes. There are only passing references in the judgments to the victim impact statements which were tendered in each case.
[25] In Friesen, the Court was addressing sexual assaults upon children, but I see no reason to apply different principles to sexual assaults upon adults. As the victim impact statements in this case and in R. v. C.T.P. demonstrate, adults and children tend to be affected in similar ways. I do not say that one should ignore the nature of the actus reus when assessing the gravity of the offence. Both the actus reus and the victim impact must be considered. However, the victim impact is the key determinant of the gravity of the offence.
[26] In Friesen at paragraph 118, the Court made it quite clear that it intended to create a new approach to sentencing in sexual assault cases, one that focusses on the harm suffered by victims. The Court said that sexual assaults upon children should attract more severe sentences than sexual assaults upon adults, but it also said that sexual assaults upon young women should attract sentences which reflect the particular circumstances of that demographic. At paragraph 68, the Court said:
Sexual violence also has a disproportionate impact on girls and young women. Like the sexual assault of adults, sexual violence against children is highly gendered …. The "intersecting inequalities of being young and female" thus make girls and young women especially vulnerable to sexual violence …. In 2012, 81% of child and youth victims of police-reported sexual offences were female and 97% of persons accused of such offences were male …. Sexual violence against children thus perpetuates disadvantage and undermines gender equality because girls and young women must disproportionately face the profound physical, emotional, psychological, and economic costs of the sexual violence …. Girls and young women are thus "still punished for being female" as a result of being disproportionately subjected to sexual violence.
[27] I think that Friesen created a new point of departure for sentencing in sexual assault cases, one which focusses less on the nature of the assault and more on the impact suffered by the victim. For that reason, I do not consider myself to be bound to follow the cases listed in paragraph 23, either by the doctrine of stare decisis or by section 718.2(b) of the Criminal Code.
Intoxication
[28] Mr. Zerbin was intoxicated at the time of the assault. Ms. Wood says that I should regard that as a mitigating factor, and referred me to R. v. Berseth [2019] OJ 2372; 2019 ONSC 888. At paragraph 105 of that decision, Justice Durno said:
First, an offender’s self-induced intoxication is irrelevant to the gravity of the offence. … Second, the offender’s intoxication is relevant to his or her moral culpability, a component of the proportionality assessment. It is not one that has any significant effect. It is minimally mitigating at its highest in some cases, and has little, if any mitigating impact in others. In others, it could be aggravating if there was a history of intoxicated offending.
In this case, Mr. Zerbin went to a drinking party with an 18 year-old girl and shared alcohol with her. He knew the girl well. She had often been a guest in his home. He knew that she looked up to him as a guiding figure in her young life. He created the situation in which this offence was committed. In those circumstances, I do not consider intoxication to be a mitigating factor.
International Travel
[29] Ms. Wood informs me that Mr. Zerbin’s business requires him to travel internationally, and that a criminal record would be a material impediment to such travel. In Elmazini (supra), Justice Mayer said at paragraphs 21 – 22:
It is only appropriate to consider a collateral consequence in determining an appropriate sentence if there is an evidentiary foundation for such a consequence. As was made clear by Justice Wagner in Pham, the significance of a collateral consequence must be determined in accordance with the facts of the particular case.
I agree with the following reasons of the trial judge in R. v. R.A.R., 2016 BCPC 276 at para. 29, that:
... A criminal record will almost always impair the employment prospects of the offender. A general inference to that effect may be drawn without evidence. However, where specific prejudice is alleged, evidence is required to support the inference.
I consider, as found by the trial judge in R.A.R., that travel restrictions of foreign countries arising from criminal convictions elsewhere are not matters of such common knowledge that they can be determined without evidence.
There is no evidence on the point in this case. Ms. Wood says that the lack of evidence is remedied by her submissions at the sentencing hearing, in which she described the difficulties which Mr. Zerbin would face. I do not agree. Evidence is given under oath by witnesses who are made available for cross-examination. The submissions of counsel are no substitute for evidence: R. v. Samia 2006 ABQB 140 (CanLII), [2006] AJ No. 195; 2006 ABQB 140.
[30] As a result, I cannot consider the effect which a conviction might have upon Mr. Zerbin’s business travel.
“Position of Trust or Authority”
[31] Section 718.2(iii) of the Criminal Code requires me to consider whether Mr. Zerbin “… abused a position of trust or authority in relation to …” B.M. when he assaulted her (emphasis added). Ms. Wood referred me to R. v. Poncelet 2008 BCSC 202 (CanLII), [2008] BCJ No. 289; 2008 BCSC 202, in which Justice Smith pointed out that there is no clear definition of the phrase. I refer also to R. v. M.A.B. [2021] OJ No. 4275, in which, at paragraph 44, Justice Brown reviewed some of the factors to be considered in determining whether an accused person occupied a position of trust or authority in relation to a victim of crime. One of those identified by Justice Brown was “… the evolution of the relationship, including when the relationship began and ended, circumstances surrounding their initial meeting, communications between them, and why the young person wanted the relationship …”. In Friesen, the Court said at paragraph 125 that:
Trust relationships arise in varied circumstances and should not all be treated alike …. Instead, it makes sense to refer to a "spectrum" of positions of trust …. An offender may simultaneously occupy multiple positions on the spectrum and a trust relationship can progress along the spectrum over time ….
[32] In this case, Mr. Zerbin met B.M. when she was 16 or 17, and living far from home without parental guidance. He was a salaried pastor of her church. They shared an interest in music. He invited her to his home, sometimes overnight, and referred to her (in jest) as his “adopted daughter”. All of this invited her to place her trust in him, as she did. Given that history, I do not think it important that he had left his position as pastor before the assault. I conclude that this relationship placed him in a position on the spectrum of trust in relation to her, and that this is an aggravating factor.
Applying the Principles in This Case
[33] In my view, a discharge is not appropriate in this case because it would not be proportionate to the gravity of the offence and the degree of responsibility of the offender. That being so, a discharge would offend the fundamental principle articulated in section 718.1 of the Criminal Code.
[34] I conclude that a fit sentence for the offence would be a conditional sentence of 3 months’ duration, followed by 18 months’ probation.
[35] There will be a conditional sentence order with a term of 90 days on the following conditions:
Mr. Zerbin must:
1. Keep the peace and be of good behaviour.
2. Attend court when required to do so by the court.
3. Report in person to a conditional sentence supervisor at 836 Courtenay Street, Victoria, British Columbia no later than noon on March 30, 2023, and must report thereafter as and when directed by his supervisor.
4. Remain within British Columbia unless leave to go outside the Province is granted by his supervisor or by the court.
5. Provide his conditional sentence supervisor with his residential address and telephone number.
6. Notify his supervisor in advance of any change of name or address.
7. Promptly notify his supervisor of any change of employment or occupation.
8. Maintain a curfew between the hours of 7:00 p.m. and 6:00 a.m. daily, and remain within his residence during curfew hours, unless (i) he is absent from his residence to seek emergency medical treatment; or (ii) he has the written permission of his supervisor to be outside his residence during curfew hours. If he is absent from his residence to seek and receive emergency medical treatment, he must proceed directly to and return directly from a medical treatment facility. If he has the written permission of his supervisor to be absent from his residence, he must carry that permission with him and show it to any peace officer who asks to see it.
9. In order to confirm his presence within his residence during curfew hours, present himself at the front door of his residence within 5 minutes of any peace officer knocking and making his presence known.
10. Not possess or consume any intoxicating substance, except with a valid medical prescription.
11. Attend, participate in and successfully complete any counselling program to which he is referred by his supervisor.
12. Have no contact or communication, directly or indirectly, with B.M., whose name should be set out in full in the conditional sentence document.
13. Not approach within 10 metres of B.M.
14. Leave B.M.’s presence immediately, without any words or gestures, if he encounters B.M.
15. Not go to any place which he knows to be a place of residence, education or employment of B.M.
The conditional sentence will be followed by a term of 18 months’ probation on the following terms. Mr. Zerbin must:
1. Keep the peace and be of good behaviour.
2. Attend court when required to do so by the court.
3. Report to a probation officer, as directed by his conditional sentence supervisor, within 7 days of the expiry of his conditional sentence, and report thereafter as and when directed by his probation officer.
4. Notify his probation officer in advance of any change of name or address.
5. Promptly notify his probation officer of any change of employment or occupation.
6. Attend, participate in and successfully complete any counselling program to which he is referred by his probation officer.
7. Have no contact or communication, directly or indirectly with B.M., whose name should be set out in full in the probation order.
8. Not approach within 10 metres of B.M.
9. Leave B.M.’s presence immediately, without any words or gestures, if he encounters B.M.
10. Not go to any place which he knows to be a place of residence, education or employment of B.M.
Sex Offender Information Registration Act
[36] As noted in paragraph 3, above, the Supreme Court of Canada has declared the mandatory registration requirements of SOIRA to be unconstitutional, but has suspended that declaration until October of this year.
[37] I refer to paragraphs 138 and 140 of the majority judgment in Ndhlovu:
Paragraph 138 (underlining added):
The Crown submits that "[a] tailored remedy is not appropriate in this case" …. Since the issue is the mandatory registration of all sex offenders, its unconstitutionality does not lend itself to such a remedy. As the Crown notes, reading down s. 490.012 so that it would simply not apply to offenders who are not at an increased risk of reoffending or who suffer grossly disproportionate impacts would, in practice, reinstate judicial discretion and contradict Parliament's clear intention to remove all judicial discretion to exempt offenders at the time of sentencing from the registry (R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 100; Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, at p. 718). We agree with the Crown that the appropriate remedy is a declaration of invalidity.
Paragraph 140:
… a prospective declaration of invalidity would not unduly prejudice offenders who have been registered since 2011 but whose rights under s. 7 are still violated. Those offenders will be able to ask for a personal remedy pursuant to s. 24(1) of the Charter in order to be removed from the registry if they can demonstrate that SOIRA's impacts on their liberty bears no relation or is grossly disproportionate to the objective of section 490.12.
Ms. Wood says that Mr. Zerbin does not present an “… increased risk of reoffending …”, and that the impact of registration would impose “… grossly disproportionate impacts …” upon him by restricting his business travel. For that reason, she says, the appropriate remedy, under section 24 of the Charter, for the breach of his Charter rights is to exempt him from the requirements of SOIRA. It seems to me that, if I were to do that, I would “… reinstate judicial discretion and contradict Parliament’s clear intention to remove all judicial discretion to exempt offenders at the time of sentencing …”. That would be exactly what the Court said I should not do: Ndhlovu at paragraph 138.
[38] I recognize, of course, that the Court said at paragraph 140 that a person who has been ordered to register under SOIRA may apply for a remedy under section 24(1) of the Charter, and that the remedy may be to order cancellation of that person’s SOIRA registration. However, I think that paragraphs 138 and 140 of Ndhlovu can be reconciled only by concluding that paragraph 138 governs at the time of sentencing and paragraph 140 governs on a later application by a person who was previously sentenced and ordered to register under SOIRA.
[39] An application of the kind contemplated by paragraph 140 of Ndhlovu is, in essence, an application for an order in the nature of mandamus to compel those who administer the SOIRA registry to delete the applicant’s information. This court has no jurisdiction to make such an order: Legal Services Society v. British Columbia [1983] BCJ No. 1772; 148 DLR (3d) 602; 1983 CanLII 522 (BC SC), 46 BCLR 32; 5 CCC (3d) 404. If Mr. Zerbin seeks such an order, he must apply to a superior court.
[40] I conclude that I am obliged by section 490.12 to order Mr. Zerbin to comply with SOIRA for a period of 10 years.
DNA Sample
[41] Sexual assault is a “primary designated offence”, as defined by section 487.04 of the Criminal Code. Counsel agree that I am obliged to require Mr. Zerbin to provide a DNA sample. Accordingly, Mr. Zerbin must attend at an RCMP detachment in British Columbia no later than 4:00 p.m. on April 6, 2023 and provide a DNA sample to an RCMP officer.
March 24, 2023
_____________________________
The Honourable Judge T. Gouge
Provincial Court of British Columbia