R. v. Turner, 2024 BCPC 52 (CanLII)
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2024 BCPC 52 |
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Date: |
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File No: |
25939 |
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Registry: |
Hazelton |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REX
v.
CASPER MONTE TURNER
PUBLICATION BAN
pursuant to s. 486.4 (2.1) of the
REASONS FOR SENTENCE
OF THE
HONOURABLE JUDGE M.J. BRECKNELL
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Counsel for the Crown: |
E. Beggs |
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Counsel for the Defendant: |
J. McCarthy |
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Place of Hearing: |
Hazelton, B.C. |
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Date of Hearing: |
September 15, 2023, and March 4, 2024 |
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Date of Judgment: |
March 25, 2024 |
INTRODUCTION
Trial Decision
[1] Casper Monte Turner (Mr. Turner) was charged on Information 25939 that on or about April 19, 2020, at Kispiox, BC, he sexually assaulted S.N. contrary to Section 271 of the Criminal Code (the “Code”).
[2] After a trial on July 5, 6, and 7, 2022, he was found guilty on August 8, 2022. The Reasons for Judgment are reported at 2022 BCPC 345.
[3] The summary of events prior to the offence are set out in paragraphs [2] through [5] of the trial decision:
ACCEPTED FACTS
[2] C.T. and S.N. are related to each other. They are both Indigenous. C.T. is 63 and is S.N.’s uncle. S.N. is 29. Although they had met in the past S.N. only came to know C.T. once his sisters arranged for him to move into A.T.’s home where C.T. also lived. C.T. was not in charge of things in the home. Prior to moving in S.N. had been homeless for many months.
[3] Prior to the Incidents S.N. had lived in the home for about six months along with A.T., C.T. and, at various times, S.N.’s sisters. The home had two floors. S.N. had his bed in a space in the basement which had two walls and two “blanket walls” for privacy and an opening for a door. That room had two beds, a large one and a smaller one, a couch, a coffee table and a TV on a stand. A.T. and C.T. had their bedrooms upstairs.
[4] S.N. is physically healthy but based on what he was told by a social worker who assisted him in the past, he believes he is mentally below average and “slow minded.”
[5] The Incidents occurred in the home during a drinking party attended, at various times by a number of people including C.T., S.N., A.T., W.M., B.J., E.J. and E.J.’s girlfriend J.W.
[4] The summary of the offence is set out in paragraphs [24] through [29] of the trial decision:
[24] The first time C.T touched S.N’s upper leg in the living room it was a very transient interaction and C.T. would have had no way of knowing if it was unwanted until his hand was swatted away by S.N. At that point he was on notice that his attention towards S.N. was unwanted.
[25] The second interaction was the hug in S.N.’s bedroom. S.N. did not suggest in his evidence that it was either unwanted or in any way sexual in nature. The third interaction of C.T. again putting his hand briefly on S.N.’s upper leg was uninvited and unwanted but it was so transient and in a location that is not obviously for a sexual purpose that a sexual assault is not proven beyond a reasonable doubt in those circumstances.
[26] The fourth interaction (the First Incident) of C.T. sliding his hand down S.N.’s back to the waistband of his pants occurred after C.T. had been told S.N. was not interested in his attentions both verbally and by having his hand swatted away. There was clearly an assault and it appears there was an intention by C.T. to make it sexual in nature. That intention was defeated when S.N. got up and left the room.
[27] The fifth interaction (the Second Incident), as described by S.N., is unusual in the way it played out. S.N. could hear C.T. approaching his curtain bedroom and he had time to get up at go to the opening. He was sober and young and strong while C.T. was drunk, older and frailer. Although it is not required at law S.N. could have easily pushed C.T. aside or pushed through the blanket wall to get away.
[28] He did not do that explaining that he wanted to have proof that C.T. was sexually assaulting him in light of the others at the party not believing him when C.T. was touching him inappropriately earlier in the evening. Although he did not consent to being pushed onto the bed and loudly made his objections known to C.T. he acquiesced to C.T.’s actions until he had “proof.” Those actions suggest vigilantism and do not reflect positively on S.N. However, they do not indicate consent or excuse or condone C.T.’s actions.
[29] S.N.’s evidence of how the Incidents played out was detailed and descriptive. He set out, moment by moment, what transpired, how he and C.T. moved in relation to each other, what he said and the tone in which it was said. He maintained his version of events and corrected defence counsel several times in cross examination when erroneous alternative versions were put to him. He did not minimize his involvement in the Incidents, fully acknowledging that he twice struck C.T. in response to C.T.’s actions.
FITNESS
[5] During counsel’s initial sentencing submissions on September 15, 2023, Mr. Turner made some utterances that raised concerns that his mental condition may have been impaired to the point that he was not able to either properly instruct counsel or fully participate in the proceedings.
[4] After discussion with counsel I decided that before proceeding further it was necessary to order an out of custody fitness assessment pursuant to s. 672 .11 of the Code. The fitness assessment was authored by Dr. N. Hodelet and dated October 18, 2023.
[5] When the sentencing hearing resumed on March 8, 2024, the Crown raised the issue of the Court’s jurisdiction to order a fitness assessment after the verdict was rendered relying on the definition in s. 2 (“unfit to stand trial”) and the wording in 672.23 of the Code. The Crown submitted that those provisions, on their face, prohibit the ordering of an assessment after a verdict.
[6] The Crown provided the recent decision of R. v. C.W.W., 2023 BCPC 17, in which my colleague, Campbell, PCJ was faced with the same issue. After a detailed analysis of the Code provisions, the case law and the Canadian Charter of Rights and Freedoms (particularly ss. 7, 1 and 52(1)) the Court concluded in paragraph [97]:
[97] Sections 2 and 672.23(1) infringe s. 7 of the Charter, and the infringement is not justified under s. 1. Pursuant to s. 52(1), the remedy applied to the applicant’s proceeding is that the words “or sentence imposed” are read in after the words “verdict is rendered” in the definition of unfitness in s. 2. With respect to section 672.23(1), the words “or sentence imposed” are read in after the words “verdict is rendered”.
[7] I have carefully considered the analysis in C.W.W. and the decision to read in certain wording as described by Campbell PCJ, and I agree with both. I then proceeded on that basis.
[8] After further submissions from counsel, a review of Dr. Hodelet’s report and s. 672.22 of the Code I was satisfied, on a balance of probabilities, that Mr. Turner was “fit” and sentencing could proceed.
CRIMINAL HISTORY
[9] Although the Crown did not allege a criminal history for Mr. Turner there was reference in the Presentence Report (“PSR”) that he had been convicted of assault in 1992 and received a sentence of 14 days in jail and a one year probation order. There was no reference to any criminal convictions on the JUSTIN criminal history presented by the Crown.
[10] Based on the Crown’s submissions I will consider Mr. Turner to be a first time offender.
LIFE CIRCUMSTANCES
[11] Mr. Turner’s personal circumstances are summarized in the three reports provided to the Court and include:
a) Mr. Turner is 65, Indigenous with Gitxsan and Carrier heritage;
b) He has lived most of his life in the Kispiox/Hazelton area;
c) His parents are deceased. His father was a logger and his mother worked in fish canneries;
d) He has 11 siblings but one is deceased;
e) Growing up he was mistreated by his older brother and disciplined by his father. He had a close relationship with his mother and grandmother;
f) He primarily attended public school, but did attend Indian Day School for either one year or three years where he was physically and verbally abused and not permitted to speak his traditional language;
g) He left public school after failing Grade 11 three times and went to work;
h) He worked for several years in a fish plant followed by decades of janitorial work, which he enjoyed. He did not want to collect any government benefits so he always ensured he had employment;
i) He met his wife at a dance and they were married for 32 years until she died of cancer. They have one son, A.T., who is 34. He lives in A.T.’s home in Kispiox; and
j) He now receives a widower’s pension and has casual employment. In addition, he voluntarily helps various members of the community.
VICTIM IMPACT
[12] S.N. did not provide a Victim Impact Statement. The Crown made submissions about the offence’s impact on S.N. based on telephone discussions with him which included:
a) He lost his housing after the incident; and
b) Although he is from the Kispiox/Hazelton community, he does not feel he can return.
REPORTS
[13] After Mr. Turner was found guilty a number of reports were ordered to assist counsel and the Court with the sentencing.
Psychological Risk Assessment
[14] The first report is dated December 16, 2022, and was authored by registered psychologist Dr. Marina Le. The portions of the report I found useful in deciding on sentence include:
a) psychometric testing was not completed despite many attempts to set up a test session with Mr. Turner. As a result much of the information came from his self reporting ;
b) Mr. Turner reported not really remembering the incident due to intoxication, but that he did not remember if he was drinking that evening. He also stated he did not remember anything and that “everything is blank;”
c) He reported that he has abstained from alcohol since April 2021;
d) He denied that he committed a sexual assault against S.N.;
e) He denied that he was bisexual;
f) He accurately described when sexual encounters were consensual or not consensual;
g) He has engaged in psychological treatment or counselling since his 30s with a focus on alcohol and substance use, anger management, grief processing, and trauma;
h) He reported that he remembers positive memories and “does not care for negative memories,” and that he does not have a good recollection for “bad times;”
i) He reported that he has never been diagnosed with any mental health conditions, and he denied any mental health symptoms. He did report isolated incidents of “visions or premonitions” in the past; and
j) Based on the Static-99R actuarial tool Mr. Turner’s risk score fell within the low range. Based on the Risk for Sexual Violence Protocol (RSVP) his risk to reoffend fell into the low range. Based on those two results his risk for sexual recidivism was in the low range;
[15] The report had the following recommendations:
a) Mr. Turner be assessed for suitability for the Sex Offender Treatment Program;
b) He should participate in a substance abuse program to develop a concrete relapse prevention plan;
c) A psychiatric referral may be useful to further explore his “visions and premonitions;” and
d) A comprehensive neuropsychological assessment may be useful to get a further sense of his cognitive functioning, abilities and limitations.
Psychological Risk Assessment Update
[16] The update report is dated June 15, 2023, and authored by Dr. Le. The update includes the results of psychometric and cognitive testing on Mr. Turner. The portions of the report, not already addressed in the first report, I found useful in deciding on sentence includes:
a) Mr. Turner again denied sexually assaulting S.N., but that S.N. was angry at him because he was asked to leave after bringing hard drugs into the home. He said that he “forgave [S.N.] for kicking me up and hurting me that night”;
b) He reported having ongoing difficulties with memory and that he engages in compensatory strategies. He does not have issues with understanding and communicating with others, managing his own finances, and that he is able to travel independently to appointments and does not get lost while trying to get somewhere;
c) Based on the Structured Inventory of Malingered Symptomology (“SMIS”) Mr. Turner endorsed a high-frequency of symptoms and impairment that is highly atypical of individuals who have genuine psychiatric or cognitive disorders; and
d) Based on the Wechsler Adult Intelligence Scale- 4th Edition (“WAIS-IV”) Mr. Turner’s overall IQ of 62 fell into the extremely low range. On the four subscales he scored two as borderline range (perceptual reasoning and processing speed), and two as extremely low range (verbal comprehension and working memory).
Presentence Report
[17] The PSR was dated April 17, 2023, and authored by probation officer Stacy Huskins. The portions of the PSR I found useful in deciding on sentence included:
a) Mr. Turner reported being diagnosed with a learning disability when he was 14 years old and that made school challenging for him;
b) He has never seen a psychiatrist, but has seen several counsellors. He is uncomfortable with male counsellors due to past trauma, but he has positive interactions with female counsellors;
c) He attended a nine-week full-time residential program in 1992, which he described as a positive experience. Since the date of the assault he has attended Alcoholics Anonymous and has been sober for two years. He expressed an interest in attending Wilp Si’Satxw in Kitwanga for further personal growth;
d) His reporting history while on bail has been satisfactory, but there have been several warrants issued for his arrest for failing to attend court;
e) He has no recollection of the night of the offence or being arrested. His son was allowing “moochers” to reside in their home who were using it as a “party house” when he did not want alcohol in the home; and
f) He did not express any remorse for the offence contending that it was a “made up story” but that he has “no beef” with S.N. and wants to move on with his life.
[18] The PSR proposed a number of interventions and community supervision terms including:
a) Forensic Sexual Offence Program (“FSOP”) which is available both in and out of custody;
b) Maintenance After Treatment (“MAT”); and
c) Reporting, no contact with S.N. or going near where S.N. may be found, abstaining from alcohol and drugs, counselling and a firearms prohibition.
THE LAW
[19] The following provisions of the Criminal Code were referred to by counsel in their submissions:
a) Sexual assault
271 Everyone who commits a sexual assault is guilty of
…
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months….
b) Date order begins
490.013 (1) An order made under section 490.012 begins on the day on which it is made.
(2) An order made under subsection 490.012(1) or (3)
(a) subject to subsections (3) and (5), ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;
(b) subject to subsections (3) and (5), ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and
(c) applies for life if the maximum term of imprisonment for the offence is life.
c) Assessment order
672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
(a) whether the accused is unfit to stand trial;
(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);…
d) Presumption of fitness
672.22 An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial.
e) Court may direct issue to be tried
672.23 (1) Where the court has reasonable grounds, at any stage of the proceedings before a verdict is rendered, to believe that the accused is unfit to stand trial, the court may direct, of its own motion or on application of the accused or the prosecutor, that the issue of fitness of the accused be tried.
f) Burden of proof
(2) An accused or a prosecutor who makes an application under subsection (1) has the burden of proof that the accused is unfit to stand trial.
g) Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
h) Objectives — offence against vulnerable person
718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
i) Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
j) Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence,
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and
(vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
k) Imposing of conditional sentence
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence under any of the following provisions:
(i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),
(ii) section 269.1 (torture), or
(iii) section 318 (advocating genocide); and
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.
l) Compulsory conditions of conditional sentence order
742.3 (1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervision
(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
n) 742.6
Powers of court
(9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may
(a) take no action;
(b) change the optional conditions;
(c) suspend the conditional sentence order and direct
(i) that the offender serve in custody a portion of the unexpired sentence, and
(ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions; or
(d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.
o) Non-communication order
743.21 (1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary.
Case Law
[20] The Crown relied on the following cases in support of its submissions:
a) R v G.M., 2015 BCCA 165;
b) R. v. Hume, 2016 BCCA 230;
c) R. v Thomas, 2022 BCSC 2297;
d) R. v. Daychief, 2023 BCPC 62;
e) R. v. Boden, 2012 BCPC 331
f) R. v. D.A., 2017 ONSC 1800
g) R. v. M.R., 2018 ONSC 583 (CanLII)
h) R. v. C.W.W., 2023 BCPC 17
[21] Defence counsel relied on the following cases in support of his submissions:
a) R. v. Ipeelee, 2012 SCC 13;
b) R. v. Proulx, 2000 SCC 5;
c) R. v. Allen, 2012 BCCA 377;
d) R. v. Anderson, 1992 CanLii 6002 (BCCA);
e) R. v. Horvath, 1997 CanLii 9759 (SKCA);
f) R. v. Wismayer, 1997 CanLii 3294 (ONCA);
g) R. v. Priest, 1996 CanLii 1381 (ONCA);
h) R. v. Vaux, 2021 BCSC 1773;
i) R. v. C.J.J., 2020 BCPC 201;
j) R. v. Hilbach, 2019 BCPC 73.
[22] Counsel also referred to additional cases that have been considered including:
a) R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688; and
b) R. v. Friesen, 2020 SCC 9.
[23] The Court also reviewed and considered the following cases referred to in the cases provided by counsel:
a) R. v. Scofield, 2019 BCCA 3;
b) R. v. Lacasse, 2015 SCC 54;
c) R. v. Bunn, 2022 MBCA 34; and
d) R. v. West, 2020 BCSC 352.
SUBMISSIONS
Crown
[24] The Crown maintains that Mr. Turner’s sentence should include:
a) 12 months custody in a provincial prison with a term to have no contact with S.N. when incarcerated;
b) A 24 month probation order with protective, counselling and reporting provisions;
c) A DNA order;
d) A s. 109 firearms prohibition; and
e) A 20 year SOIRA order.
[25] The Crown’s submissions in support of its position included:
a) The primary considerations in a sexual assault sentencing are denunciation and deterrence as described in the case law and s. 718.04 of the Code;
b) S.N. is a vulnerable person because he is Indigenous and was homeless before and after the assault;
c) G.M. states that expert opinions about an offenders risk to reoffend have reduced weight where the offender denies the offence;
d) Hume confirms that many sexual assaults may be “serious” even without intercourse. It is up to the trial judge, after considering the evidence and the law, to exercise their discretion to determine whether a particular sexual assault and its circumstances make it “serious”. The Crown does not allege this case to be a serious sexual assault;
e) The Court should consider the large age gap here as noted in Hume and that S.N. was vulnerable, had to resist to escape and has his sexual integrity violated;
f) Thomas reviewed the factors considered in Friesen and that those considerations apply to sexual offences against adults and that all sexual assaults are morally blameworthy. The Court must give proper weight to Mr. Turner’s attitude toward S.N. because it is relevant to his moral blameworthiness. While lack of remorse is not an aggravating factor it can be considered in determining the risk to reoffend;
g) In Thomas a Conditional Sentence Order (“CSO”) was rejected because it did not provide the necessary deterrence and denunciation required for a serious sexual assault;
h) In Daychief the Court examined the circumstances where both the offender and the victim of a serious sexual assault were Indigenous. In that case a CSO was rejected;
i) The aggravating factors in this case include,
i. S.N.’s vulnerability including previous homelessness, intoxication and being an Indigenous person,
ii. the assault occurred in S.N.’s bedroom;
iii. Mr. Turner exhibited continuing predatory behaviour;
iv. there was a power imbalance between S.N. and Mr. Turner;
v. S.N. has a familial connection to the community;
vi. the age gap between S.N. and Mr. Turner;
vii. Kispiox is a remote community;
viii. although it was not a “serious” sexual assault it was very traumatic to S.N.;
j) The mitigating factors in this case include;
i. Mr. Turner has dealt with his alcohol abuse issues ,
ii. Mr. Turner’s age,
iii. Mr. Turner’s cognitive issues; and
iv. Gladue factors.
k) Other factors that are neither aggravating or mitigating include;
i. Mr. Turner’s refusal to accept responsibility and his lack of remorse,
ii. that he was found guilty after a trial, and
iii. He has taken no counselling for this offence to mitigate the possibility of recidivism;
l) S.N. was a vulnerable, cognitively impaired, previously homeless Indigenous person attacked in his bedroom by Mr. Turner. The primacy of deterrence and denunciation makes a CSO inappropriate. Mr. Turner’s refusal to accept responsibility, lack of remorse and his previous difficulties in meeting his obligations to the Court to report all support the Crown’s position on sentence.
Defence
[26] Defence counsel’s position on sentence is for a two year Conditional Sentence Order followed by a three-year probation order. This would provide a longer period of supervision for Mr. Turner than the Crown suggests and would allow him to access necessary rehabilitative services. Defence counsel does not dispute the probation order terms and ancillary orders sought by the Crown.
[27] The defence submissions in support of that position include:
a) Mr. Turner is an Indigenous person who has experienced a difficult childhood including attending Indian Day School, but has no criminal history. He has low intelligence and diminished cognitive abilities;
b) The psychological reports place him at a low risk to reoffend sexually;
c) He is capable of attending counselling as demonstrated from his past accessing those services. He has had some difficulty in meeting his obligations to the Court but there is no indication that he is incapable of meeting his obligations. In addition, he now has a better method of contacting Community Corrections which will assist him in conforming to their expectations;
d) The Crown’s submission that because Mr. Turner may have difficulty in complying with a CSO he should not be granted one is without any legal foundation;
e) The Crown’s submission about the effects of the sexual assault on S.N. is not supported by any evidence. S.N. did move out of the home he shared with Mr. Turner and his son but there is no evidence as to when or why that occurred;
f) The Crown’s submission that the age difference between Mr. Turner and S.N. is an aggravating factor is untenable because Mr. Turner is and was a frail man in his 60s while S.N. was in the prime of life;
g) There was no power imbalance between Mr. Turner and S.N. because Mr. Turner was living in his son’s home and had no power over others living there. He was reliant on his son’s charity. He also had no influence over the consumption of alcohol in the home as evidenced by the drinking on the night of the assault;
h) The Crown submission that, as in Thomas, S.N. was vulnerable in relation to Mr. Turner is not supportable. There was no power imbalance between the two and there is no evidence of any psychological harm to S.N.;
i) Although lack of insight, denial of the events, and lack of remorse are indications of increased risk factors the Crown’s submission that the psychological reports should be given lesser weight is not supportable. The author of the reports, with knowledge of Mr. Turner’s denials, determined that he was a low risk to reoffend. Although the Court could give lesser weight to or disagree with the reports as was done in Hume, the circumstances between that case and the case at bar should satisfy the Court that it can rely on the reports;
j) Although Friesen details the various factors that might negatively affect victims of sexual assault, it does note that not all sexual assaults are equally serious. In this case S.N. may have been frightened and upset by Mr. Turner’s actions but he repelled them with considerable force and well before the event became a serious sexual assault;
k) If the Court was to order that Mr. Turner take counselling and he was sent to prison he could refuse counselling without any penalty. However, if counselling was required under the terms of a CSO he could be charged with a breach and end up spending more time in custody than the Crown requests;
l) Denunciation and deterrence are primary considerations in sexual assault cases but they are not the only considerations the Court must consider;
m) When considering s. 718 of the Code all of the sentencing factors except denunciation are meant to make Canada a safer place. Denunciation is effectively community retribution against an offender based on the offence, their circumstances and their moral culpability as described in Allen and M.(C.A.);
n) In Anderson the Court of Appeal noted on page 3:
the need for “proportionality” in order that a sentence properly reflect “moral blameworthiness” on the part of the wrongdoer is dictated by concern that there will otherwise be a loss of public confidence in the administration of the law, perhaps the most important factor in preserving the security of society. But having in mind the high price which has to be paid, in both direct and indirect costs, with no hope of return and often with significant increased risk of future criminal activity, or imprisonment is imposed solely in order to reflect “moral culpability” or “denunciation” the courts have recognized the need for restraint in sentencing for this purpose
o) As an Indigenous person with reduced cognitive capacity Mr. Turner’s moral blameworthiness and culpability is at the lower end of the scale. That combined with his low risk to reoffend makes specific deterrence less relevant. The validity of general deterrence is questioned in Horvath and Wismayer;
p) As described in Vaux and C.J.J. there are no “ranges” for a particular offence. There are only guidelines and the Court must craft a sentence based on the particular offender and a particular offence;
q) Proulx makes it clear that a properly crafted CSO can achieve the objectives of denunciation and deterrence;
r) The Court must give very careful consideration to s. 718.2 (d) and (e) of the Code and the Supreme Court of Canada’s directions in Gladue and Ipeelee in determining the appropriate sentence for Mr. Turner. Ipeelee clearly indicates that no offence is so serious that a sentencing Court can ignore its duty to apply s. 718.2 (e). That direction must be adhered to even in the face of Friesen where the Supreme Court sets forth increased sentencing parameters for sexual offences; and
s) The historic and systemic injustices imposed on Indigenous people by Canadian society has left them downtrodden for so long that the sense of responsibility in individuals can be diminished by those circumstances.
DISCUSSION
[28] Although the courts regularly rely on ranges with regard to sentencing, each case must be determined on its own set of circumstances as they pertain to the events and the offender. It is commonly accepted that sentences imposed in other cases may be of some limited assistance in determining a fit sentence. This was discussed by the Supreme Court of Canada in R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, where the Court said at paragraph 92:
[92] . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. For these reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.
[29] Earlier in paragraph 81 of the same decision:
[81] . . . The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant . . . "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass". The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.
[Emphasis in original]
[30] The Supreme Court of Canada revisited the role of the sentencing judge in R. v. Nasogaluak, 2010 SCC 6, where the court said at paragraph 43:
[43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case . . . No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case . . . The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.
[31] That concept was further addressed by the British Columbia Court of Appeal in R. v. Voong, 2015 BCCA 285, at paragraphs 6 and 7, where the Court said:
[6] Imposing a sentence for criminal conduct is in the purview of judges in the trial courts. It is an individualized process, in that a sentence must be fashioned to take into account the circumstances of the offence, the circumstances of the offender, the moral blameworthiness of the offender, the principles of sentencing, and proportionality to the offence and the offender.
[7] Much has been written about the philosophical principles that underlie our present day sentencing ideology. For centuries, philosophers debated, and continue to debate, the role of punishment and the underlying ideology behind punishment. As a result, the law has developed a number of sentencing principles, some conflicting, some ameliorating others, such as retribution and rehabilitation, and all that must be considered by the judge who has to determine a “fit” sentence for the offender before him or her. It is not an easy task, and not a task that should come under microscopic scrutiny of the appellate courts.
[32] In Vaux Devlin, J. made a detailed analysis of a number of cases that addressed the sentencing principles I must apply in determining Mr. Turner’s sentence. In particular, the following paragraphs were of great assistance to me:
[51] With respect to the focus on deterrence and denunciation in sentencing, the Court in Friesen states at para. 104:
[104] Section 718.01 thus qualifies this Court’s previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority [citations omitted]. However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality [citations omitted].
. . .
[54] However, the Court in Friesen clarifies that this guidance should not be viewed as a direction by the Court to disregard other relevant factors that may reduce the offender’s moral culpability. At para. 91, the Court in Friesen states:
[91] These comments should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability. The proportionality principle requires that the punishment imposed be “just and appropriate . . ., and nothing more” (M. (C.A.), at para. 80 (emphasis deleted); see also Ipeelee, at para. 37). First, as sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct, the offender’s conduct will be less morally blameworthy in some cases than in others. Second, 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 (citations omitted).
[55] Similarly, when dealing with Indigenous offenders, the Court in Friesen explained that the principles from Gladue and Ipeelee still apply:
[92] Likewise, where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, and Ipeelee. The sentencing judge must apply these principles even in extremely grave cases of sexual violence against children (see Ipeelee, at paras. 84-86). The systemic and background factors that have played a role in bringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73). Similarly, a different or alternative sanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74).
. . .
[79] Additionally, as I have set out above, “[w]hen sentencing individuals with cognitive limitations, deterrence and punishment assume less importance”; the “decreased emphasis on punishment and deterrence in these circumstances is consistent with the proportionality principle”, as the sentence “must be proportionate to not only the gravity of the offence, but also the degree of responsibility of the offender”: (citations omitted)
[80] In this regard, I note as well the comments by Justice Brundrett at para. 40 of R. v. Campbell, 2021 BCSC 323:
[40] The Supreme Court of Canada has held that a conditional sentence, while most useful in satisfying the principles of rehabilitation and instilling a sense of responsibility, can also provide for deterrence and denunciation: R. v. Proulx, [2001] 1 S.C.R. 61 at paras. 98-100 [Proulx]. Moreover, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, the Court held that it is both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences: Proulx at para. 81.
[33] The interrelationship between sentencing Indigenous offenders who sexually assault Indigenous victims was discussed in Daychief where Mrozinski, PCJ said in paragraphs [6] through [8]:
[6] On the one hand, 718.2(e) of the Code requires sentencing courts to consider all available sanctions other than imprisonment that are reasonable and consistent with the harm done to victims, particularly in the case of Indigenous offenders. The purpose of this section is thoroughly canvassed in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688 and in R. v. Ipeelee, 2012 SCC 13 at paras 56 to 87. It bears noting that the injunction in Gladue that sentencing courts take steps to ameliorate the overrepresentation of Indigenous people in Canadian prisons stated so clearly appears to have failed to such a degree as to require it to be restated in force in Ipeelee. Again and again in the sentencing cases before me, sentencing courts refer to and quote from both Gladue and Ipeelee, yet in many, many of the cases before me in this sentencing, Indigenous offenders have received not insubstantial custodial sentences in cases involving sexual assault. In many of those cases, the victim or victims are themselves members of an Indigenous community.
[7] The tensions between s. 718.2(e) of the Criminal Code and 718.04 which directs sentencing courts to give primary consideration to the sentencing objectives of denunciation and deterrence when the victim is Indigenous is discussed by the Court in R. v. West, 2020 BCSC 352, at paras 33 to 37. There, it is acknowledged that s. 718.04, while not going so far as to make violence against Indigenous women, girls, and gender diverse people an aggravating factor on sentencing, does provide one way to reduce that violence and that is by giving these sentencing objectives priority over the kind of restorative sentences that might otherwise be appropriate for Indigenous offenders.
[8] Still, West, acknowledges at paragraph 53 that community-based sentences that focus on rehabilitation can also address denunciation and deterrence. In West, as in every sentencing cases, courts must acknowledge that sentencing is fundamentally an individualized exercise. The fit sentence in every case will turn on a number of factors all balanced against one another. It is a highly imperfect exercise, but one that at its core must reflect what is apparently fair or just in all of the circumstances.
Aggravating Factors
[34] The aggravating factors in this case are:
a) the assault occurred in S.N.’s bedroom where one should be able to expect privacy and security;
b) Mr. Turner exhibited continuing persistent sexual behaviour towards S.N. despite being rebuffed;
c) S.N. has a familial connection to the community; and
d) although it was not a “serious” sexual assault it was very traumatic to S.N.
Mitigating Factors
[35] The mitigating factors in this case are:
a) Mr. Turner has dealt with his alcohol abuse issues;
b) In the past he has engaged counselling to assist him with personal challenges
c) His age;
d) His cognitive issues and lower than normal intelligence; and
e) Gladue/Ipeeleee factors.
Other Factors
[36] The additional factors I must consider include:
a) The sentence should be in parity with other similar offences and similar offenders;
b) Mr. Turner’s refusal to accept responsibility and his lack of remorse;
c) That he was found guilty after a trial, and
d) He has taken no counselling for this offence to mitigate the possibility of recidivism.
[37] I must also carefully consider the Supreme Court of Canada’s recognition in Gladue and Ipeelee that the Court must consider the over representation of Indigenous people in the custodial corrections system and that as victims of systemic discrimination they are different from other offenders.
[38] Although the sentencing principles of denunciation and deterrence are primary considerations in sex assault cases, the Court must also consider the circumstances of the offence, as well as the circumstances of Mr. Turner including his Indigenous background. His cognitive challenges also play a role in reducing his moral culpability.
[39] He did not have a criminal record at the time he committed this offence so the principles of rehabilitation and making reparations must not be forgotten. Rehabilitation must include counselling, treatment, and programs to assist Mr. Turner in developing tools and skills to ameliorate the possibility of further offending.
[40] His refusal to accept responsibility for his actions may be due to a considered denial to accept the facts. But it may also be due to his inability to recall anything of the evening due to his intoxication.
[41] Mr. Turner’s sexually charged advances to S.N. in circumstances where others at the party described him in the derogatory term of being a “fag” may have also caused him shame within his social group despite his unwillingness to acknowledge it. Although the concept of two spirited individuals in Indigenous cultures has become recognized within the LGBTQQIP2SAA (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, and ally) community, it is not necessarily accepted by all members of a community, and may result in derision or even violence against those are identified as such.
[42] I give little weight to the Crown’s submission that S.N. was a vulnerable person as described in s. 718.04 of the Code for the following reasons:
a) As I found in the trial decision S.N. was sober, young, and strong while Mr. Turner was drunk, older and frail;
b) S.N. was able to repel Mr. Turner’s assault with moderate effort and some punches; and
c) The contention that S.N. was homeless before and after the assault is not based in fact because he lived in Mr. Turner’s son’s home for six months before the assault. Mr. Turner was excluded from the home on a police undertaking from April 20, 2020, until it was replaced with a release order on February 28, 2022, requiring him to have no contact with S.N. There was no evidence of when S.N. left the home.
[43] In Summary, I have considered the following in determining a fit and proper sentence in this matter:
a) Mr. Turner’s past and present circumstances;
b) The PSR and the psychological reports;
c) The sentencing principles and purposes in the Criminal Code and the application of those principles and purposes in a fashion that determines whether or not some of them should be given more or less priority;
d) and the Gladue and Ipeelee factors as mandated by the Supreme Court of Canada;
e) The extensive case law presented by counsel and the other cases I have referred to in this decision; and
f) The thorough oral submissions of counsel.
[44] After consideration of all of those factors, a just and appropriate sentence is a CSO. However, I have also concluded that to meet the principles of denunciation and deterrence it must have strict terms and conditions and be a longer sentence than that suggested by the Crown. It should also be noted that a jail sentence offers release after certain portions of it are served while a CSO must be served in its entirety, which is an additional deterrence.
[45] I am satisfied that a sentence in the community would not endanger the safety of the community. It would also be consistent with the fundamental purpose and principles of sentencing set out in ss. 718-718.2 of the Code and meet the requirements of s. 742.1(a) of the Code,
DECISION
[46] On Information 25939 Count 1 there will be a Conditional Sentence Order of 18 months followed by a Probation Order of a further 30 months.
[47] Mr. Turner, I am sentencing you on Information 25939 Count 1 to 18 months of imprisonment to be served in the community in the form of a Conditional Sentence Order. If you breach the Conditional Sentence Order, you will be arrested, may be kept in custody, your conditional sentence could be suspended and you could be ordered to serve the remaining portion in custody. The conditions of the order are:
a) You must keep the peace and be of good behaviour;
b) You must appear before the court when required to do so by the court;
c) You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation;
d) You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province;
e) You must report by telephone to a conditional sentence supervisor at 114 – 3793 Alfred Ave, Smithers, BC, V0J 2N0, 250-847-7365 by 3:00 PM tomorrow, March 26, 2024, and after that, you must report as directed by your conditional sentence supervisor;
f) If you do not speak to a conditional sentence supervisor, you must continue calling daily during regular business hours until you have spoken to one and have received further direction to report;
g) When first reporting to a conditional sentence supervisor, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one. You must not change them without notifying your conditional sentence supervisor at least three days before making the change;
h) You must have no contact or communication directly or indirectly with S.N.;
i) You must not go to or be within 50 meters of any place where S.N. lives, works, attends school, worships or happens to be. If you see them you must leave their presence immediately without any words or gestures;
j) For the first 12 months of the conditional sentence You must obey house arrest by being inside the place where you live and regularly sleep 24 hours a day seven days a week.
The exceptions are:
i. You have the prior written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other reasonable purposes;
ii. You are going directly to, or returning directly from, a healthcare facility because of a medical emergency;
iii. You are going directly to, or returning directly from, appointments or meetings regarding your health or counselling;
iv. To complete your community work service as directed by the conditional sentence supervisor;
v. Between the hours of 1:00 pm and 4:00 pm on Tuesdays, Thursdays and Saturdays to attend to shopping or other personal needs;
vi. You must remain in the common areas of the building or within 10 meters of the front door where you can immediately be located or you are on the lot but within 10 meters of the front door;
vii. You must present yourself immediately at the door to the place where you are living or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest;
viii. If you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format at all times when you are away from the place where you live and regularly sleep;
ix. If a peace officer finds you outside the place where you are living during the house arrest hours and requests to see the permission, you must show it to the officer; and
k) For the remainder of the conditional sentence you must obey a curfew by being inside the place where you live and regularly sleep between 10:00 pm and 8:00 am seven days a week.
The exceptions are:
i. You have the prior written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other reasonable purposes;
ii. You are going directly to, or returning directly from, a healthcare facility because of a medical emergency;
iii. You remain in the common areas of the building or within 10 meters of the front door where you can immediately be located or on the lot but within 10 meters of the front door;
iv. You must present yourself immediately at the door to the place where you are living or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew;
v. If you are given permission by your conditional sentence supervisor, you must carry it with you in paper or electronic format at all times when you are away from the place where you live and regularly sleep;
vi. If a peace officer finds you outside the place where you are living during the curfew hours and requests to see the permission, you must show it to the officer;
l) You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription;
m) You must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your conditional sentence supervisor. This may include counselling or programming for:
i. Alcohol or substance use,
ii. Mental health,
iii. Trauma recovery,
iv. Sexual assault prevention;
n) You must complete 60 hours of community work service under the direction of your conditional sentence supervisor. Your community work service must be completed at a rate of at least four hours per month.
[48] At the conclusion of the Conditional Sentence Order there will be a probation order. You must comply with the probation order for a term of 30 months. The conditions are:
a) You must keep the peace and be of good behaviour;
b) You must appear before the court when required to do so by the court;
c) You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation;
d) You must report by telephone to a probation officer 114 – 3793 Alfred Ave, Smithers, BC, V0J 2N0, 250-847-7365, within one business day of completing your conditional sentence, unless you have obtained before your completion of your conditional sentence, written permission from a probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your probation officer;
e) When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one. You must not change them without notifying your probation officer at least three days before making the change;
f) You must have no contact or communication directly or indirectly with S.N.;
g) You must not go to or be within 50 meters of any place where S.N. lives, works, attends school, worships or happens to be. If you see them you must leave their presence immediately without any words or gestures;
h) You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription;
i) You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your conditional sentence supervisor. This may include counselling or programming for:
i. Alcohol or substance use,
ii. Mental health,
iii. Trauma recovery,
iv. Sexual assault prevention.
[49] Pursuant to section 490.012 of the Criminal Code you are required to comply with the Sex Offender Information Registration Act for 20 years.
[50] Count 1 on information 25939 is a primary designated offence. Pursuant to section 487 .051 (1) of the Criminal Code I authorize the taking of samples of body substances from you. You must attend at the Royal Canadian Mounted Police detachment at 4322 13 Ave, New Hazelton, BC, V0J 2J0, on or before April 12, 2024, between the hours of 9 AM and 4 PM and submit to the taking of the samples. This order is valid until executed.
[51] Pursuant to section 109 of the Criminal Code you are prohibited from possessing:
a) any firearm, other than a prohibited firearm or restrictive firearm, any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years from today; and
b) any prohibited firearm or restrictive firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[52] Pursuant to s 737(2.1) of the Criminal Code, I am satisfied:
a) because of your precarious financial circumstances the result of unemployment the surcharge would cause an undue hardship to you;
b) I order you to pay no surcharge.
____________________________________
The Honourable Judge Michael J. Brecknell
Provincial Court of British Columbia