R. v. M. A. (D.)

2001BCSC0557 Citation HMTQ v. D.M.A. (Reasons for Sentence) Date: 20010412 2001 BCSC 557 Docket: 0013127 Registry: Williams Lake IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: HER MAJESTY THE QUEEN AGAINST D.M.A. REASONS FOR SENTENCE OF THE HONOURABLE MR. JUSTICE S.R.ROMILLY BAN ON DISCLOSURE 486(3) C.C.C. Counsel for the Crown: W. J. Hilderman Counsel for the accused: M. Kaay Date and Place of Hearing: April, 12, 2001 Williams Lake, BC [1] The accused, an aboriginal person, was found guilty of indecently assaulting T.D. between the 1st day of July 1981 and the 31st day of December, 1981, at or near the district of 100 Mile House, in the Province of British Columbia. [2] At the time of the assaults the complainant was between the ages of 5 to 6 years old. The accused occasionally visited the complainant's mother and grandmother's house on the Canim Lake Reserve. On at least three occasions when the complainant's mother, father and grandmother were passed out, the accused took off the complainant's under pants and digitally penetrated her. These assaults have had a devastating effect on the complainant who is now a grown woman. [3] In order to deal with the sentencing of this accused, it is necessary for me to first deal with the background of the accused. The accused is a 51 year old aboriginal person who lives on the Canim Lake Reserve, near Williams Lake, British Columbia. He comes from an unfortunate background and has spent most of his adult life in jail. Apart from that he is hopelessly addicted to alcohol. He has tried on occasion to deal with this addiction but to date he has been unsuccessful. He has a lengthy criminal record and the vast majority of his previous offences are alcohol related. His criminal record is as follows: 1969-07-21 100 MILE HOUSE, BC TAKE AUTO WOC SEC 281 CC $75 I-D 30 DAYS 1970-12-19 100 MILES HOUSE, BC DRIVING WHILE ABILITY IMPAIRED $250 I-D 30 DAYS 1970-12-21 100 MILE HOUSE BC DRIVING WHILE ABILITY IMPAIRED SEC 222 CC 30 DAYS 1972-05-01 100 MILE HOUSE, BC (1) DRIVING WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD SEC 236 CC (2 CHGS)(2) DRIVING WHILE DISQUALIFIED SEC 238(3)(A) CC (2 CHGS) (1) $250 I-D 30 DAYS ON EACH CHG CONC(2) $100 I-D 30 DAYS ON EACH CHG CONC BUT CONSEC TO #1 1973-06-13 100 MILE HOUSE, BC (1) DRIVING WHILE ABILITY IMPAIRED SEC 234 CC(2) DRIVING WHILE LICENCE SUSP SEC 236 CC (1) $250 I-D 30 DAYS(2) $100 I-D 30 DAYS 1975-09-04 100 MILE HOUSE, BC TAKE AUTO WOC SEC 295 CC FINED I-D 14 DAYS 1975-09-11 100 MILE HOUSE, BC DRIVE WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD SEC 236 CC $200 I-D 10 DAYS 1977-10-26 KAMLOOPS, BC DRIVING WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD SEC 236 CC 6 MOS & PROBATION 2 YRS. 1978-07-25 WILLIAMS LAKE, BC DRIVE WHILE DISQUALIFIED SEC 238(3) CC 6 MOS 1982-03-09 KELOWNA, BC (1) DRIVING WHILE ABILITY IMPAIRED SEC 234 CC(2) FAIL TO APPEAR SEC 133(5) CC (1) 2 MOS (2) 1 MO CONSEC 1982-09-03 KAMLOOPS, BC (1) DRIVE WITH MORE THAN 80 MGS OF ALOCOHOL IN BLOOD SEC 236 CC(2) FAIL TO APPEAR SEC 133(5) CC (3) DRIVE WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD SEC 236 CC (4) FAIL TO APPEAR SEC 133 CC (1) 4 MOS(2) 30 DAYS CONSEC (3) 3 MOS (4) 30 DAYS CONSEC _______ 09 06 100 MILE HOUSE BC THEFT UNDER $200 SEC 294(B) CC 15 DAYS 1984-09-15 CHILLIWACK BC DRIVING WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD SEC 236 CC 14 MOS 1986-06-16 WILLIAMS LAKE, BC CARE OR CONTROL WHILE ABILILTY IMPAIRED SEC 237(A) CC (RCMP 100 MILE HOUSE BC 86-0235) 2 YRS 1987-09-08 WILLIAM LAKE BC DRIVING WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD SEC 237(B) CC (2 CHGS) (RCMP 100 MILE HOUSE 87-2561) 3 YRS & 6 MOS ON EACH CHG CONC 1992-11-16 WILLIAMS LAKE BC UNLAWFULLY AT LARGE SEC 145 CC (RCMP PRINCE GEORGE 92-12037 32722) 40 DAYS 1993-11-03 100 MILE HOUSE BC (1) ASSAULT SEC 266 CC(2) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (3) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (RCMP 100 MILE HOUSE 93-3760, 1397) (1) 6 MOS & PROBATION 3 YRS(2) 30 DAYS CONC (3) 1 DAY CON 1994-04-12 100 MILE HOUSE BC DRIVNG WHILE ABILITY IMPAIRED SEC 253(A) CC(RCMP 100 MILE HOUSE 93-2911) 3 YRS & PROH DRI 3 YRS 1994-06-21 100 MILE HOUSE BC (1) DRIVING WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD(2) FAIL TO COMPLY WITH PROBATION ORDER (INST MISSION 1002) (1) 3 YRS CONCWITH SENT SERVING (2) 30 DAYS CONC 1997-09-02 100 MILE HOUSE BC DRIVING WHILE DISQUALIFIED SEC 259(4) CC(RCMP 100 MILE HOUSE 97-1755) 1 YR & PROH DRI 3 YRS 1999-02-02 100 MILE HOUSE BC THEFT UNDER $5000SEC 334(B) CC (RCMP 100 MILE HOUSE 98-2392) 1 DAY & PROBATION 9 MOS [4] The accused has not appeared for his sentencing today notwithstanding this however I intend to impose sentence in his absence. [5] Although a pre-sentence report was requested, the accused refused to appear for appointments with the probation officer. As a result, I do not have a pre-sentence report or a "Gladue" report. I do, however, have a letter from the Canim Lake Family Violence Program dated April 11, 2001 which states in part: Mr. D.M.A. has attended detox once since January, 2001. It was quite a challenge getting him there, as he often had "other things to do". Nonetheless, he eventually went, only to leave early. Mr. D.M.A. has not attended a single counselling session as scheduled since January 22. He has attended a few other times, but unscheduled, extremely intoxicated, and not in any condition for counselling of any sort. For this reason, and primarily for the safety of others in the community, the Canim Lake Family Violence Program, specifically the sex offender treatment component, is unable to accept Mr. D.M.A. into the program at this time. Perhaps an early release plan may be considered, or upon the completion of Mr. D.M.A.'s sentence. It needs to be clear that as long as others are at substantial risk, that largely being due to Mr. D.M.A.'s intoxication, Mr. D.MA. will not be able to attend the sex offender treatment component of the program. While we stand behind this decision, it is nonetheless made with regret. Position of the Crown [6] The Crown takes the position that the accused should be sentenced to a period of incarceration for a period of six months to one year plus a three year probation period. Position of the defence [7] The defence submits that he cannot argue with the position of the Crown. He argues that in view of his client's addiction, the three year probation period would be counter productive. [8] In order to deal with the sentencing in this matter it may be prudent to first canvass the law. The law i. Relevant sections of the Criminal Code [9] Bill C-41, "An Act to Amend the Criminal Code (Sentencing) and Other Acts in Consequence Thereof", S.C. 1995, c. 22, received Royal Assent and was proclaimed into force on September 3, 1996. It replaced Part XXIII of the Criminal Code entitled "PUNISHMENTS, FINES, FORFEITURES, COSTS AND RESTITUTION OF PROPERTY" with a new Part XXIII entitled merely "SENTENCING". Section 718 outlines the purpose and principles which must a judge must take into account in sentencing an accused. These purposes are outlined in the section as follows: Purpose and Principles of Sentencing 718. The fundamental purpose of sentencing is 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; (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 to promote a sense or responsibility in offenders, and acknowledgement of the harm done to victims and to the community. The section also addresses several other issues, including aggravating factors, proportionality of sentences, consecutive sentencing and the principle that an offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances. For the purposes of this judgment I also note s. 718(2)(e) which reads as follows: (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. ii. The aboriginal issue [10] In R. v. Gladue, (1999), 133 C.C.C. (3d) 385 (S.C.C.) Cory and Iacobucci JJ. noted at para. 48 that two of Parliament's principal objectives in enacting Part XXIII were (i) reducing the use of prison as a sanction, and (ii) expanding the use of restorative justice principles in sentencing. In Gladue, supra at para. 52, Cory and Iacobucci JJ. pointed out that Canada's incarceration rate of approximately 130 inmates per 100,000 population places it second or third highest among industrialized democracies. In their reasons, Cory and Iacobucci JJ. reviewed numerous studies that uniformly concluded that incarceration is costly, frequently unduly harsh and "ineffective, not only in relation to its purported rehabilitative goals, but also in relation to its broader public goals". [11] Section 718.2(e) requires that a court imposing a sentence must take into consideration the principle that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders." This section was interpreted in Gladue, supra, where the Court summarized the principles that should be considered when dealing with an aboriginal offender. At para. 93, Cory and Iacobucci JJ. summarized the principles as follows: 1. Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence. 2. Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders. 3. Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision's remedial purpose real force. 4. Section 718.2(e) must be read and considered in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. All principles and factors set out in Part XXIII must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that Part XXIII, through ss.718, 718.2(e), and 742.1, among other provisions, has placed a new emphasis upon decreasing the use of incarceration. 5. Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. However, the effect of s. 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders. 6. Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider: 7. The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and 8. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. 9. In order to undertake these considerations the trial judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case-specific information will come from counsel and from a pre-sentence report which takes into account the factors set out in #6, which in turn may come from representations of the relevant aboriginal community which will usually be that of the offender. The offender may waive the gathering of that information. 10. If there is no alternative to incarceration the length of the term must be carefully considered. 11. The section is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed. 12. The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved. 13. Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on or off reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term "community" must be defined broadly so as to include any network of support and interaction that might be available, including an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment. 14. Based on the foregoing, the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non-aboriginal offender for the same offence. 15. It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as practical a matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal. [12] In R. v. Laliberte (2000), 143 C.C.C. (3d) 503 (Sask. C.A.) Vancise J.A. at paras 59-60 provides a summary of some of the considerations which the sentencing judge should follow under s. 718.2(e) in order to determine whether or not an aboriginal offender should be incarcerated: The sentencing judge must: (1) examine the unique systemic or background circumstances common to aboriginal offenders as a group; (2) consider the particular circumstances of the offender which resulted in him committing the crime for which he is before the court; and (3) then decide, having regard to the information obtained in steps (1) and (2), whether incarceration is required for the particular offender before the court... [13] In Laliberte the court also outlined the information which a sentencing judge must be provided with to accomplish the process outlined above. At para. 59, Vancise J.A. states that a sentencing judge should consider the following: (1) whether the offender is aboriginal, that is, someone who comes within the scope of s. 25 of the Charter and s. 25 of the Constitution Act, 1982; (2) What band or community or reserve the offender comes from and whether the offender lives on or off the reserve or in an urban or rural setting. This information should also include particulars of the treatment facilities, the existence of a justice committee, and any alternative measures or community-based programs. (3) whether the offender has been affected by:a. substance abuse in the community;b. alcohol abuse in the community;c. poverty;d. overt racism;e. family or community breakdown. (4) whether imprisonment would effectively deter or denounce crime in the subject community. Within this heading it would be useful for the court to determine whether or not crime prevention can be better served by principles of restorative justice or by imprisonment. (5) What sentencing options exist in the community at large and in the offender's community. For example, does an alternative measures program exist in the offender's community if he lives on a reserve? [14] Of course, the sentencing judge must assess these factors in the context of the particular circumstances surrounding the offence. [15] Let me say at this stage that although I will not normally write a judgment of this length on a sentencing of this nature, I am reminded of the words of Iacobucci and Cory JJ. in Gladue, supra, where they observed at para. 85: ... it should be noted that, although s. 718.2(e) does not impose a statutory duty upon the sentencing judge to provide reasons, it will be much easier for a reviewing court to determine whether and how attention was paid to the circumstances of the offender as an aboriginal person if at least brief reasons are given. [16] In Gladue at para. 79 the following appears: Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. See also R. v. Nikal (December 2, 1999) Victoria CA020203 (B.C.C.A.); R. v. Devries (October 12, 1999) Vancouver CA024577 (B.C.C.A.), but see R. v. Dennis 2001 BCCA 30 [17] In R. v. Armbruster (1999), 138 C.C.C. (3d) 64 (B.C.C.A.), the Court pointed out that when dealing with aboriginal offenders s. 718.2(e) requires restraint in the use of imprisonment as a sentence, and a recognition by the sentencing judge of the unique circumstances of aboriginal offenders. At para. 62 Ryan J.A. pointed out that at the time of sentencing the offender was working with a native elder to address his behavioural problems in conjunction with educational programming and other programs which specifically addressed the needs of aboriginal people. She noted that unique systemic and background factors have contributed to the offenders inability to function in civil society and found that it was possible that the offender would be assisted in dealing with his behavioural issues by the steps he had undertaken. She held that Gladue required her to take these facts into account in determining a fit sentence. [18] In R. v. Wells (2000), 141 C.C.C. (3d) 368 (S.C.C.) the Court discussed how judges should deal with aboriginal offenders. Iacobucci J. for the Court wrote at para. 30: If the judge's preliminary assessment of a fit sentence excludes both a suspended sentence and a penitentiary sentence, and the statutory prerequisites in s. 742.1 are fulfilled, then he or she is required to consider s. 718.2(e) when deciding the appropriateness of a conditional sentence. The judge's consideration of s. 718.2(e) at this stage does not displace the need to take into account all of the other principles and objectives set out in ss. 718 to 718.2. Moreover, whenever a judge narrows the choice to a sentence involving a sentence of incarceration, the judge is obliged to consider the unique systemic or background circumstances which may have played a part in bringing the particular aboriginal offender before the courts. As well, the judge must consider the types of practical procedures and sanctions which would be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage (Gladue, supra, at para. 93). As indicated in Gladue, the application of s. 718.2(e) does not mean that a sentence would automatically be reduced, since the determination of a fit sentence requires a consideration of all the principles and objectives set out in Part XXIII. [19] In R. v. Dennis, 2001 BCCA 30; [2001] B.C.J. No. 122 (QL)(C.A.) the accused, who was aboriginal, slashed the complainant with a knife and stabbed him once in the neck and several times in the back with a pair of scissors. Between the date of the offence and the sentencing, the accused made great efforts to rehabilitate himself. The accused was sentenced to a term of two years less one day. On appeal, the court was of the view that although the offence was violent and serious, that in itself did not obviate the need to consider the general principles governing the new conditional sentencing provisions of the Criminal Code. In allowing the appeal, the court relied on R. v. Wells, supra. [20] In Wells, the Court did make it clear that s. 718(2)(e) does not mandate a different sentence for aboriginal offenders in all circumstances. Iacobucci J. observed at para. 42 that, notwithstanding that there may be different approaches as between aboriginal and non-aboriginal conceptions of sentencing, in some cases the goals of denunciation and deterrence will be relevant to an aboriginal offender's community. This would generally be the case when more violent or serious offences were being considered. [21] Iacobucci J. reinforces this issue in Wells by emphasizing at paragraph 44 that s. 718(2)(e) requires a different methodology for assessing a fit sentence for an aboriginal offender. It does not mandate, necessarily, a different result. The section "does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender" (at para. 78). Depending upon the nature of the crime, the sentencing judge does not always have to give greater weight to restorative justice and less weight to goals such as deterrence, denunciation and separation. Referring to the generalisation made in Gladue, supra, Iacobucci J. wrote that this methodology means that particularly violent and serious offences will generally result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders. [22] At para. 49 of Wells, however, Iacobucci J. writes that "in appropriate circumstances, a sentencing judge may accord the greatest weight to the concept of restorative justice, notwithstanding that an aboriginal offender has committed a serious crime." He points out that the generalisation drawn in Gladue associating the seriousness of the offence with similarity of sentences between aboriginal and non-aboriginal offenders was not meant to be a principle of universal application. As stated by the Court in Gladue, supra, at paragraph 81: The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence. [23] Iacobucci affirms this statement in Wells, supra, and makes it clear at para. 50 that, "In each case, the sentencing judge must look to the circumstances of the aboriginal offender." The sentence must always be considered in light of these circumstances. ii. The indecent assault issue [24] Before R. v. W.(L.F.) (2000), 140 C.C.C. (3d) 539 (S.C.C.) and R. v. S.(R.N.) (2000), 140 C.C.C. (3d) 553 (S.C.C.) were decided, the following were some cases where conditional sentences were and were not imposed for sexual assault. [25] R. v. Sénécal (1997), 3 C.R. (5th) 261 (Que. S.C.), R. v. Scidmore (1997), 3 C.R. (5th) 280 (Ont. C.A.), R. v. Wismayer (1997), 115 C.C.C. (3d) 18 (Ont. C.A.) ; R. v. R.J.S. (1999), 102 B.C.A.C. 166 (B.C.C.A.); R. v. G.(A.) (1999), 130 C.C.C. (3d) 30 (Ont. C.A.); R. v. Wilson, [1998] O.J. No. 5367 (QL) (Ont. C.A.) are examples of courts granting conditional sentences for sexual offenses. R. v. Cuthbert (February 2, 1998) Vancouver CA020080 (B.C.C.A.); R. v. Oliver (1997), 99 O.A.C. 234 (Ont. C.A.) R. v. Ursel et al, supra, are examples of cases where a conditional sentence was not granted for a sexual assault. In R. v. R.J.E. (April 15, 1999) Vancouver CA025724 (B.C.C.A.), however, the court granted an 18 month conditional sentence to a perfectly healthy man who was in loco parentis to the 13 year old child whom he sexually assaulted on a continuous basis. Similarly in R. v. R.P.R. (June 14, 1999), Vancouver CA025706 (B.C.C.A.) the court upheld a two year less one day conditional sentence imposed on a man who entered his ex-wife's home without permission and forced her to fellate him. [26] In R. v. Wilson, supra, the Court stated at para 8: We are of the view that the trial judge erred in stating that a conditional sentence could only be imposed for this type of offence in "very exceptional" circumstances of "extreme age or illness". In our view, a conditional sentence was an appropriate disposition in this case. [27] The sentiment expressed in R. v. Wilson eventually received approval in R. v. Proulx (2000), 140 C.C.C. (3d) 449 (S.C.C.). The Supreme Court of Canada has now entirely rejected the exceptional circumstances test for conditional sentences. Lamer C.J.C. stated at paras 80-1: Several parties in the appeals before us argued that the fundamental purpose and principles of sentences support a presumption against conditional sentences for certain offences. The Attorney General of Canada and the Attorney General for Ontario submitted that a conditional sentence would rarely be appropriate for offences such as: sexual assault against children; aggravated sexual assault; manslaughter; serious fraud or theft; serious morality offences; impaired or dangerous driving causing death or bodily harm; and trafficking or possession of certain narcotics. They submitted that this followed from the principle of proportionality as well as from a consideration of the objectives of denunciation and deterrence. A number of appellate decisions support this position. In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. [28] Taking the lead from these words of wisdom, in R. v. Bremner (2000), 146 C.C.C. (3d) 59 (B.C.C.A.), the Court imposed a conditional sentence of 18 months on an accused sea cadet officer who sexually assaulted sea cadets between 13 to 16 years old who were in his charge. [29] In R. v. W.(L.F.) (2000), 140 C.C.C. (3d) 539 (S.C.C.) the accused was convicted on one count of indecent assault and one count of gross indecency. The offences were committed between 1967 and 1973 and at the time the victim was between 6 and 12 and the accused was between 22 and 28 years old. The trial judge sentenced the accused to a conditional sentence of 21 months. In arriving at that sentence, the trial judge reviewed the aggravating factors and mitigating factors in the case. He found that aggravating factors were the victim's age, the fact that the crimes were repeated, the harmful impact on the victim, and the abuse of familial trust. Mitigating factors were the absence of further criminal conduct and the respondent's good reputation in the community. The trial judge was also of the view that there was no appreciable risk of criminal conduct by the offender if he served his sentence in the community. The trial judge noted that the accused had spent over a quarter century since the offences without any related criminal activity by him and that he had led a productive life. The trial judge was therefore of the view that incarceration was not needed for specific deterrence of the offender, despite the absence of expressed remorse. The trial judge pointed out that the stigma of trial and conviction should not be minimized, and that a conditional sentence might, in the circumstances, serve the purposes of denunciation and general deterrence if meaningful conditions were imposed. Consequently, aside from the mandatory conditions imposed pursuant to s. 742.3 of the Criminal Code, the trial judge ordered that the offender (1) abstain from the consumption of alcohol or drugs, (2) attend sex-offender counselling if required by his supervisor, (3) not associate with the victim or her immediate family except at their request, (4) perform up to 150 hours of community service if so directed by his supervisor and (5) remain under house arrest subject to specified exceptions. The Court of appeal dismissed the appeal. The Supreme Court of Canada divided evenly, which affirms the judgment of the Court of Appeal but rendered the judgment void of any precedential value. L'Heureux-Dubé did however state how these type of offences are usually treated. She stated at paras 29-30: Courts have tended, even under the new sentencing principles adopted in Bill C-41 (now S.C. 1995, c. 22), to find that the principle of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust and authority. See: R. v. Oliver (1997), 99 O.A.C. 234; R. v. Alfred (1998). 122 C.C.C. (3d) 213 (ont.C.A.); R. v. P.D., [1999] O.J. No. 3375 (Q.L.) (C.A.); R. v. R.R.E., [1998] O.J. No. 2226 (QL) (Prov.Div.); R. v. P.M., [1999] O.J. No. 421 (QL) (Prov.Div.); R. v. I., [1998] O.J. No. 5713 (QL) (Gen.Div.); R. v. Cuthbert (1998), 101 B.C.A.C. 147. While the trial judge stated that he considered principles of deterrence and denunciation in determining the sentence, in my view, the decision to impose a conditional sentence in this case indicates a serious failure to give appropriate weight to the objective of denunciation I also agree with Cameron J.A. that the trial judge did not give sufficient weight to the moral blameworthiness of the offender, who engaged in offensive and demeaning behaviour with a young person over whom he had significant power as an older relative and neighbour, and who indicated no remorse even upon conviction for the offences. This offends the proportionality set out in s. 718.1 of the Criminal Code, R.S.C., 1985, c.C-46, which establishes the fundamental principle that the court must impose a sentence proportionate to the gravity of the offence and the degree of responsibility of the offender. [30] In R. v. S.(R.N.) (2000), 140 C.C.C. (3d) 553 (S.C.C.) which involved the sexual abuse of a child, all members of the court agreed that the original 9 month conditional sentence was inappropriate. At paras 18-19 Lamer C.J.C. stated: With respect, I do not think that a nine month conditional sentence was a fit sentence, in light of the relevant sentencing considerations, including the gravity of the offences committed and the high moral blameworthiness of the respondent. The impugned acts occurred repeatedly over a period of approximately five years. The respondent abused the trust of a very young child, despite clear indications from the complainant that she did not like what he was doing. He remained unrepentant and continued to deny that the offences took place. The amount of denunciation provided by a nine-month conditional sentence was clearly insufficient in the circumstances to signify society's abhorrence for the acts the respondent committed, despite the fact that his liberty was restricted by the conditions imposed. It must be remembered that, even though the respondent experienced some marital difficulties, he still benefitted from the support of his family, while the victim and her mother were ostracized by the rest of the family. In conducting its re-sentencing, the Court of Appeal should have recognized that the relevant lenient nine-month term imposed by MacArthur Prov.Ct.J. was the result of his taking into account the precarious health of the respondent at the time of sentencing, his marital difficulties and the social stigma he had already suffered, as the sentencing judge would have been inclined to agree with the Crown's submission that a term of incarceration in the range of 18 to 24 months was warranted. By imposing a conditional sentence of only nine months, the Court of Appeal transformed what was already a lenient sentence into an unfit sentence. I would add that the Court of Appeal was not obliged to impose a conditional sentence of equivalent duration to the term of incarceration imposed by the trial judge. [31] Lamer C.J.C then explained the reason why he apparently reached a different decision in R. v. W.(L.F.), supra, (S.C.C.). He stated at para. 23: Although this conclusion seems to differ from the result I reached in L.F.W., supra, the present appeal can be distinguished from L.F.W., in three respects. First, in L.F.W., the conditional sentence imposed was considerably longer than the nine-month conditional sentence imposed by the Court of Appeal in this case. Had the Court of Appeal imposed a significantly longer conditional sentence, I would not have interfered, given the deference to which sentencing decisions by appellate courts are entitled. Second, in L.F.W., the offender was arguably rehabilitated, as demonstrated by the 25-year period that had elapsed without any further criminal activity. Finally, in L.F.W., the conditional sentence imposed by the trial judge (and confirmed by the majority of the Court of Appeal) was entitled to considerable deference, according to the standard enunciated in R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 90, and Proulx, supra, at paras. 123-126. The Court of Appeal's sentence in this case, although entitled to some deference, is not entitled to the same level of deference accorded to sentences imposed by trial judges. I would add that in L.F.W., I might well have imposed a term of incarceration were it not for the deference I was bound to give to the sentence imposed by the trial judge (at para. 25). [32] Apart from that, in relation to denunciation Lamer C.J. stated in Proulx, at para. 102: Denunciation is the communication of society's condemnation of the offender's conduct. In M.(C.A.), supra, at para. 81, I wrote: In short, a sentence with a denunciating 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 at R. v. Sargeant (1974), 60 Cr. App. R. 74 at 77: "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 sentence they pass. Analysis [33] In the case at bar, I find the aggravating factors are the victim's age, the fact that the crimes were repeated, the harmful impact on the victim, and the abuse of familial trust. There seem to be no mitigating factors to this disgusting behaviour. I have to consider gravity of the offences committed and the high moral blameworthiness of the respondent. The impugned acts occurred three times over a period of two months when the complainant was only five years old. The respondent abused the trust of a very young child. He remained unrepentant and continued to deny that the offences took place. In my view, I have to place some weight on the moral blameworthiness of this offender, who engaged in offensive and demeaning behaviour with a young person over whom he had significant power as an older relative and neighbour and who indicated no remorse even upon conviction for the offences. I have to consider the proportionality test set out in s. 718.1 of the Criminal Code, R.S.C., 1985, C-46, which establishes the fundamental principle that the court must impose a sentence proportionate to the gravity of the offence and the degree of responsibility of the offender. [34] In imposing the sentence that I am about to pronounce, I am aware that the reasons in Gladue, supra, do not foreclose the possibility that, in the appropriate circumstances, I may accord the greatest weight to the concept of restorative justice, nothwithstanding that an aboriginal offender has committed a serious crime. I am also acutely aware that in Gladue, at para. 81, the remedial purpose of s. 718.2 (e) directs the sentencing judge not only take into account the unique circumstances of aboriginal offenders, but also to appreciate relevant cultural differences in terms of the objectives of the sentencing process. Nevertheless, I am satisfied that this is a case where a custodial sentence must be imposed. [35] I sentence the accused to one year at the Prince George Regional Correction Institute. "S.R. Romilly, J." The Honourable Mr. Justice S.R. Romilly