R. v. Corneau

2022 BCSC 1185 R. v. Corneau IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Corneau, 2022 BCSC 1185 Date: 20220420 Docket: X081340 Registry: New Westminster Regina v. Robert Martin Corneau Restriction on Publication: Pursuant to 486.4 C.C.C. Before: The Honourable Mr. Justice Armstrong Oral Reasons for Sentence Counsel for the Crown: J.C. Henry Counsel for the Accused: B. Coleman, Q.C. Place and Dates of Hearing: New Westminster, B.C. February 22, 2022 March 25, 2022 April 19, 2022 Place and Date of Judgment: New Westminster, B.C. April 20, 2022 Table of Contents Introduction. 3 The Offence. 4 Background. 4 The Offender 4 The Pre-Sentence Report 6 The Psychological Assessment 7 Victim Impact Statement 9 Analysis. 10 Issue 1: What is the appropriate range of sentence?. 10 Legal Framework. 10 Crown Position. 13 Defence Position. 18 Analysis (Issue 1) 22 Issue 2: Should the sentence be reduced due to his special medical circumstances?. 26 Legal Framework. 27 Evidence of Mr. Corneau's Medical Conditions. 32 Evidence of the Availability of Suitable Healthcare in Prison. 37 Analysis (Issue 2) 42 Conclusion. 47 Introduction [1] THE COURT: Mr. Corneau was convicted of sexually assaulting A.M. on January 5, 2017, in Langley. These reasons will address the sentencing for this crime. [2] If a transcript of these reasons should be required, I reserve the usual right to edit and correct the text to ensure that it conforms with my intention and reasoning, but nothing in substance will change. [3] The defence did not dispute generally the ranges of sentences put forward by the Crown as a fit sentence in the circumstances of this case. Rather, the key issue in the case addressed by Mr. Corneau is whether his sentence ought to be reduced from the range proposed by the Crown to a non‑custodial sentence to account for medical conditions that he says place his health at unusually high risk if incarcerated. The defence submits that Mr. Corneau's medical conditions are exceptional circumstances that should influence the court's assessment of the fitness of a custodial sentence. Mr. Corneau's medical conditions, coupled with the conditions in prison, will expose him to a risk of dangerous consequences if he is incarcerated for the time proposed by the Crown, and thus a lengthy period of incarceration would be an unfit sentence. [4] The Crown seeks a sentence in the range of 32 to 40 months' incarceration with a number of ancillary orders. The defendant submits a more appropriate sentence would be a three‑year suspended sentence with conditions, or alternatively a 90‑day intermittent sentence followed by three years' probation. [5] The principal question, as I have said, is whether the evidence presented by Mr. Corneau establishes the fact that there are risks to his life or health and well‑being stemming from his collateral health circumstances, and whether these risks are sufficiently serious that his incarceration will make his time in prison more onerous (because of the conditions in prison and his physical health) as compared to others not in those circumstances. [6] If Mr. Corneau has met the burden on him, I must next decide, if a suspended sentence (or 90‑day intermittent sentence) should be ordered, together with a probation order, rather than an incarceration in a federal institution. It is also possible he might benefit from a reduction in the length of sentence, notwithstanding a rejection of his submissions. The Offence [7] The details of this offence are set out in the reasons for judgment indexed at 2019 BCSC 2349. Briefly, after an evening of entertainment at a local Langley nightclub, the victim and Mr. Corneau visited a nearby casino and then travelled to Mr. Corneau's home. The victim had consumed a considerable amount of alcohol and was offered an additional drink in Mr. Corneau's home. [8] Mr. Corneau made physical contact with the victim, touching her with his hand for a sexual purpose. Frightened by Mr. Corneau, the victim fled the house and Mr. Corneau followed her and brought her back into the residence. He then forcibly penetrated her vagina with his penis. She suffered some injury to her genitalia during the assault. [9] After sexually assaulting the victim, Mr. Corneau requested a taxicab and left his residence with her in the taxi, travelling towards her home, and before reaching her home, he left her in the taxi and she completed the journey. Background The Offender [10] Mr. Corneau is 42 years old. He was 40 years old at the time of the offence. He is the father of four children, ages 7, 12, 16, and 18. [11] Mr. Corneau is divorced from his first wife, M.C., and from his second wife, S.M. He had a 13‑year relationship with his first wife during which their children were born. They separated in 2010, but resumed their relationship for an additional three years afterwards. [12] In 2013, Mr. Corneau began a relationship with S.M. They were married in 2019 but separated in June of 2020, due in part to the stresses surrounding this proceeding and uncertainty about his ability to support his family. Mr. Corneau and S.M. have one son. [13] Mr. Corneau remains on good terms with M.C., his former wife, and co-parents their children. He pays monthly child support of $1,000 per month plus additional funds for clothing, sports, and the children's other activities. He currently has a parenting role during each weekend and through some weeks. [14] He currently pays $400 per month to S.M., plus s. 7 expenses, to support their one child. [15] His older children live in Abbotsford with M.C. Although Mr. Corneau was residing in Gibsons for some time, he now lives in the Langley‑Aldergrove area. He has worked in construction for 25 years and was employed in a commercial and residential garage installation business before starting his own business on the Sunshine Coast in 2019. I understand that Mr. Corneau now commutes to the Sunshine Coast for that work and business. [16] His background and history are unremarkable. He has a close‑knit circle of friends and family who are supporting him through the aftermath of his conviction and potential incarceration. He is a member of a local church, and the pastor of that institution has provided him with support. [17] Mr. Corneau's only other encounter with the criminal law stems from a July 2017 discharge on a charge of theft under $5,000 from a Costco store for which he received a conditional discharge and nine months' probation, and 25 community work service hours. That event occurred after the sexual assault and at a time when he was struggling with his Family Maintenance obligations to his first wife. He was successful in completing his nine months' probation and abided by all of those conditions, and has no other criminal record. [18] Concerning these charges, he said he is willing to abide by any conditions and counselling that might be required, including a sex offender treatment program. The Pre-Sentence Report [19] The presentence report was prepared by Ryan Hill, a probation officer in Sechelt, B.C., in February, and is dated February 24, 2020. [20] This presentence report indicates that Mr. Corneau had a stable upbringing and remained stable during his adult life while maintaining employment. He is mostly a healthy individual, but his involvement in the legal process related to the offence caused him considerable stress and worry, and worry to his family. [21] His former wife, S.M., reports that he had been binge drinking and using cocaine during the last six years after his mother passed away. She believed the fallout from his offence has contributed to his decline and to some alcohol and drug use. S.M. was quite supportive of Mr. Corneau during the trial, but became less supportive towards the end. She said that they have since divorced. Mr. Corneau denied the suggestion that he was using cocaine, although he concedes that he drinks alcohol. [22] There is conflict in the presentence report, which reports no substance abuse, and S.M.'s account of Mr. Corneau's substance use. Mr. Corneau did not challenge the contents of this presentence report prior to making submissions. He says he was truthful about his substance use when he discussed this issue with the probation officer writing the report. [23] He may have been untruthful about his substance abuse and binge drinking that started in or about 2014, as I say, but he did not challenge this part of the report prior to counsel's submissions, and the process referred to in R. v. V.W., 2008 ONCA 55 [V.W.], was not followed. Mr. Corneau did not put the Crown on notice of objection to that fact and no request was made to cross-examine Mr. Hill or S.M. Overall, I do not find the suggested inconsistency is an aggravating factor, in any event. [24] He indicated to the presentence report author that his current circumstances may be compromising his mental health and that he might require counselling and some addiction counselling. [25] The presentence report said he earns sufficient income to pay basic expenses for his family, but they require his former wife's contribution to meet all of their expenses. In the past, he had been injured and was not always capable of performing his employment duties. Mr. Hill's report noted that after Mr. Corneau's divorce from his first wife, he encountered some difficulties paying support and reached a low point in his life in 2017, around the time he committed the subject offence. After that was when the incident at Costco had occurred. [26] Mr. Corneau continues to deny his guilt regarding the sexual offence for which he has been convicted. [27] Mr. Hill described programs that would be available to Mr. Corneau in the provincial system and in community systems. He indicated that if Mr. Corneau is sentenced to a custodial sentence of less than two years, there will be a determination as to whether he is eligible to serve his sentence at Ford Mountain Correctional Centre. At Ford Mountain, he may, provided that he meets the criteria for the program, be referred to the Forensic Sex Offender Program. This program is facilitated by a registered psychologist and qualified mental health professional. It follows a cognitive behavioural therapy model that includes group discussions and individual exercises. It is 12 weeks long and an inmate requires a 12‑ to 18‑month sentence to complete the program, whether incarcerated or serving a community supervision order. The Psychological Assessment [28] There was also a presentence psychological assessment of Mr. Corneau in February 2020 performed by Dr. Sarah Mordell, a registered psychologist with the Vancouver Regional Clinic for Adult Forensic Psychiatric Community Services. [29] Dr. Mordell interviewed Mr. Corneau and directed her staff to perform some psychological testing. [30] Dr. Mordell elicited background information from Mr. Corneau, including about his prior relationships and his children from those relationships. She concluded that Mr. Corneau was reluctant to acknowledge or lacked awareness of problems in his life. She felt he had a low level of motivation for treatment. [31] She opined that he failed to understand how his behaviour might have been problematic in any way and continued to deny committing the offence. Consequently, she concluded that he did not recognize the need for treatment, although he struggles with psychological stressors on an ongoing basis. She said he has positive factors in his life, including a support network, and concluded that he was "at a relatively low risk of future sexual offences". She opined that he did require routine treatment. [32] Dr. Mordell said Mr. Corneau's propensity for sexual offences appears to be increased by a lack of understanding of consent issues, including issues surrounding consent and intoxication. She said that his relationship problems and poor coping at the time of the offences appear to have disinhibited his behaviour, but it is unclear to what extent alcohol may have been a factor. Dr. Mordell believed that Mr. Corneau may reduce his risk of reoffending by avoiding situations that might put him at risk. [33] She made recommendations for Mr. Corneau to manage himself and reduce his risk of offending, including: a) the participation in a forensic sexual offender treatment program offered by a psychologist in a provincial custodial setting; b) moderate to high intensity sex offender programming delivered in a federal custodial setting. It is unknown to her if he would be accepted into such program if he were found to be at low risk; and c) third, if released into the community, monitoring his relationships, stress, and treatment compliance would be of assistance. Victim Impact Statement [34] A.M. provided a victim impact statement dated December 12, 2019. She described difficulties after the event relating to sleeping and socializing with friends due to anxiety, stress, and traumatic memories. She struggles to maintain a romantic relationship with a partner and has difficulties with intimacy. She feels unsafe during normal activities and is repeatedly reminded of this incident. She finds herself unable to work full‑time due to mental stress. She has struggled many times to complete work and suffers from fear and panic, including fears that she might run into Mr. Corneau. [35] Mr. Corneau argued that the victim impact statement should receive less weight, in part because the victim had "a tendency to embellish her evidence". While I accept that allegations of fact about an offender, if not agreed to, must be proven beyond a reasonable doubt, victim impact statements are treated differently. I accept Crown's argument that there is a responsibility on the accused to seek cross-examination of a victim on a statement if they wish to show an "air of reality" to the dispute about the facts. [36] The principles on this point were also addressed in V.W. The court said at para. 29: [29] It seems to me that the way to reconcile the use of victim impact statements with the procedural rights conferred by s. 7 of the Charter . . . and s. 724(3) of the Criminal Code is to impose a threshold "air of reality" burden on the offender to satisfy the sentencing judge that a fact or facts contained in [a witness's] impact statement are disputable and that the request to cross-examine is not "specious or empty" . . . The Law of Sentencing (Toronto: Irwin Law, 2001) at 198. If there is no factual dispute that meets this low threshold, the protections accorded by s. 724(3) are not triggered and I fail to see how there could be any violation of the appellant's s. 7 Charter rights. [30] This analysis suggests that there is a discretion on the part of the sentencing judge to assess the offender's request in the light of the facts that [may] have been proved and the evidence that has been led, whether at the trial or on the sentencing hearing, [and] with a view to achieving a just reconciliation between respecting the procedural rights of the offender and respecting the legitimate role of the victim in the sentencing process. The sentencing judge's duty to ensure that the offender's procedural rights are protected entails a [direction] to permit cross-examination when satisfied that there is an air of reality to the claim that the facts are in dispute and that the offender's request to cross-examine is not specious or empty. [Emphasis added.] [37] Mr. Corneau did not seek to question the victim on her impact statement by way of cross examination. In these circumstances, there is no basis to question the truth or accuracy of those statements made in her statement. Analysis Issue 1: What is the appropriate range of sentence? Legal Framework [38] Section 271 of the Criminal Code, R.S.C., 1985, c. C-46 [Code] sets out the punishment for sexual assault, which in this case has a maximum punishment of 10 years: Sexual assault 271 Everyone who commits a sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. [39] The purposes and objects and principles in forming the sentencing of offenders are set out in the following sections of the Code, including s. 718, 718.1, and 718.2: 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. . . . 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. . . . 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. [40] In cases of sexual assault, denunciation and deterrence are paramount sentencing objectives: see R. v. G.M., 2015 BCCA 165 [G.M.] at para. 18. Deterrence includes both general deterrence and specific deterrence targeted to an offender. When sentencing serious sexual assaults, denunciation is the primary goal, absent exceptional or unique circumstances: see R. v. Cartwright, 2019 BCSC 820 [Cartwright]. [41] Inherent in this sentencing process is the assessment of the offender's moral culpability. Retributive considerations require that sentences reflect an offender's moral blameworthiness: see R. v. C.A.M., [1996] 1 S.C.R. 500, 1996 CanLII 230 (SCC) at paras. 529‑530. Crown Position [42] In this case, the Crown seeks a sentence of 32 to 40 months in prison. They argue the proper sentence is in the mid‑range. They also seek a number of ancillary orders including: a) pursuant to s. 487.051 of the Code, an order authorizing the taking of bodily samples from Mr. Corneau for forensic DNA analysis; b) pursuant to s. 109 of the Code, an order prohibiting Mr. Corneau from possessing weapons for a period of 10 years (this is a mandatory order); c) pursuant to s. 490.012 of the Code, they seek an order requiring Mr. Corneau to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 [SOIRA] for a period of 20 years (this is a mandatory order); and d) pursuant to s. 743.21 of the Code, an order prohibiting Mr. Corneau from contacting the victim for any period of time that he is in custody. [43] The Crown highlighted the importance of s. 718 of the Code, focusing on sentencing goals to further the respect for law and the maintenance of a just and peaceful society. Crown underscores the importance of the following: a. denouncing Mr. Corneau's unlawful conduct generally; b. deterring Mr. Corneau and others who might commit these offences; c. separating Mr. Corneau from society because it is necessary; d. assisting rehabilitation of offenders within the custodial setting; e. promoting a sense of responsibility in Mr. Corneau and others, causing them to acknowledge the harm done to victims and to the community; and f. ensuring the sentence is proportionate to the gravity of the offence and responsibility of Mr. Corneau, as well as to similar sentences imposed in similar circumstances. [44] The Crown said that s. 718.2 requires the court to take into consideration aggravating and mitigating circumstances, including evidence that the assault had a significant impact on the victim, considering her age at 19, and her personal circumstances. [45] The Crown concedes that offenders should not be deprived of liberty if less restrictive sanctions might be appropriate. The maximum sentence, as indicated, is 10 years and a conditional sentence is not available. It was emphasized that the disturbing events had longstanding effects on A.M.'s life following the assault. [46] The Crown contends there are few mitigating factors. They pointed out that the accused has not shown remorse, that he had no insight into his behaviour, and there was no guilty plea. These are neutral factors. However, the Crown recognized the following circumstances were mitigating circumstances: · Mr. Corneau has supported his family, has the support of his family, friends, and pastor; · he has a high‑school education; · he has been consistently employed; · he provides financial support for his family; · he has been compliant with his bail conditions; · he has cardiac health concerns; and · he is willing to attend counselling, (although none has been initiated since publication of the psychiatric report). [47] The Crown points to multiple aggravating factors, including the victim's age: She was 19 at the time of the offence; he was 39. She was intoxicated and vulnerable. At one point, she lost consciousness and awoke to Mr. Corneau assaulting her. The Crown also points to other aggravating circumstances of the offence, namely that his actions continued in the face of her active resistance; she repeatedly told him to stop. She tried to escape the situation and Mr. Corneau brought her back into the suite, where he continued the assault. The assault involved touching her vagina and forcing her to touch his penis, sucking her breasts, and vaginally penetrating her with his penis, all without her consent and against her protests. Crown argues this was a predatory offence because he knew the victim was drunk before he invited the victim into his home. Mr. Corneau did not use a condom, which exposed the victim to significant risk. He caused physical injury to the victim, who suffered from some vaginal pain, bleeding, and bruising to her genital area. The offence had longstanding and significant psychological impacts. [48] The Crown points out that Mr. Corneau's denial of guilt can be taken into account as reflective of the risk that he might reoffend, while the Crown acknowledges this is not an aggravating factor. The suggestion that he was untruthful with the probation officer concerning his struggles with substance abuse is also indicative that he may be at further risk to offend. [49] The psychiatric assessment noted Mr. Corneau to have 6 of 22 factors present indicating possible risk of future sexual violence. His proclivity for future sexual offences is likely tied to stressors, and in particular, difficulties in relationships. [50] Overall, the range of sentences for sexual assault that includes vaginal penetration is between two years and six years in custody, bearing in mind these ranges are guidelines only. [51] The Crown cited the following sexual assault sentencing cases which bear some similarities to this case: a) In R. v. G.M., the offender was convicted of assaulting and sexually assaulting his former boyfriend and, on appeal, an intermittent sentence of 90 days was set aside and a sentence of 18 months' incarceration followed by 18 months' probation was ordered. In that case, the offender had no criminal record. However, the assault was violent and continued despite the victim's resistance. The court noted that the sentence, on appeal, should not be taken as falling within the appropriate range, as it was likely dictated by the position taken by the Crown at the sentencing hearing. b) In R. v. Ignacio, 2018 ONSC 2832, the offender was sentenced to 20 months in prison with no probation for exceeding the victim's consent by forcefully penetrating her vagina with his penis against her protests and ejaculating while not wearing a condom. The offender was young, he had no criminal record, and had a supportive family and strong prospects of rehabilitation. c) In R. v. Stankovic, 2015 ONSC 6246, the offender was sentenced to three years' custody for exceeding a victim's consent, overpowering the victim, and penetrating her vagina and her anus with his penis, while wearing a condom. The offender did not have a criminal record. He was paying child support and maintained contact with his family. There was no gratuitous violence in that case. d) In R. v. Rand, 2012 ONCA 731, the Court of Appeal upheld a sentence of four years' incarceration for sexual assault of a vulnerable intoxicated 17‑year‑old at an outdoor concert. The victim was in and out of consciousness during the assault. The offender vaginally and anally penetrated the victim against her protests. The offender and his co‑accused left the victim in bushes alone. The offender had no prior criminal record and the victim sustained minor physical injuries. e) In R. v. Hume, 2016 BCCA 230, the offender received a three‑year custodial sentence for sexual assault, unlawful confinement, and uttering threats. The offender was a 45‑year‑old justice programs coordinator at an Aboriginal band office. He offered a 24‑year‑old victim a ride home. The victim had an alcohol problem. The offender invited the victim to his house for a drink, which the victim accepted, as he had no other way to get home. The victim became very intoxicated and lost consciousness. The accused preyed on his vulnerability by removing the victim's clothes and shaving his body, including his genitals. The offence was aggravated because the offender abused his position of trust in the community to build trust with the victim. The fact that there was no penetration was not a significant factor, as this was still a highly invasive, humiliating, and degrading assault. f) R. v. Skoyen, 2020 BCSC 362 [Skoyen] was a case involving a 31‑year‑old first‑time offender sentenced to three years' imprisonment for a violent sexual assault where the offender sodomized the victim with his fingers, forcefully penetrated her vagina with his penis, and forced her to perform fellatio. The offender physically assaulted the victim during the assault, including choking her and holding her hands over her nose to prevent her from breathing and called her vulgar names. The assault continued at two different locations in the face of the victim's active cries and protests, and the behaviour worsened after the second. g) Cartwright is a case where the offender was sentenced to 30 months' incarceration for sexually assaulting a woman who was sleeping on a couch. The victim awoke to the naked or near‑naked offender undressing her with an erection. The victim was vulnerable. The offender was at least reckless as to whether or not he had consent and proceeded to perform sex acts on the victim while she silently submitted to his will out of fear. His actions included penetrating her vagina with his fingers and his penis and performing oral sex. He did not use protection. She sustained internal and external injuries to her vaginal area, and suffered other physical and emotional injuries resulting from the assault and its effect on her sexual health, which were exacerbated by a pre‑existing medical condition. At the time of the sentencing, the offender did not accept responsibility for his actions or express remorse. He had a prior conviction for assault and breach of recognizance, but he did have significant family and community support and had begun counselling. [52] The Crown summarized sentencing principles, including that where an offender denies guilt, those denials, although not aggravating, may be used as evidence of the offender's state of mind and the risk of reoffending: see G.M. at para. 29. [53] The Crown also pointed out that Mr. Corneau's submissions called into question the victim's statement without seeking to cross-examine her, and although Mr. Corneau is reported to be at a low risk of committing future sexual offences, he did display some risks to reoffend. The Crown emphasized that his continued denials may affect his risk of reoffending, and that the protection of the public in this case was the most important consideration. Defence Position [54] Mr. Corneau did not challenge the Crown's submissions concerning the actual range of the sentence of 32 to 40 months. He sought a three‑year suspended sentence with conditions. If prison time was required, he seeks to have a 90‑day intermittent sentence followed by three years' probation, and he takes no position on the ancillary orders requested by the Crown. [55] He did, however, raise some objections to Crown's submissions, firstly with regard to the impact of the victim impact statement that I have already addressed, and the suggestion that he had binge‑drinking behaviours. Most of Mr. Corneau's submissions, however, were focused on his health concerns and the risks he says will result from incarceration. [56] Mr. Corneau objected to the Crown's characterization of the offence as predatory. He contends that the offence was not predatory, although he concedes it was a serious crime. He argued that the victim went voluntarily with him in the taxicab to a casino, and that there was no indication he had forced or induced her to consume significant amounts of alcohol to facilitate the assault. [57] Based on my findings that the claimant overstated the amount of alcohol she had consumed and her activities at the nightclub, I found she was not impaired to the levels alleged by her or by other witnesses and the Crown. I found she was inebriated but not incapable, and I did not accept that Mr. Corneau's involvement in the offence was predatory, based on the victim's consumption of alcohol that evening. Additionally, Mr. Corneau contends that he was truthful with his probation officer in discussing his alcohol consumption. [58] The thrust of his submissions were focused on arguing that the sentence should be reduced due to his special circumstances and specifically his health difficulties. [59] Mr. Corneau says the health risks resulting from his heart condition will be exacerbated by incarceration. He contends the collateral consequences of incarceration may have serious impacts on his health and an appropriate sentence should reflect the increased health risks he will face if he is incarcerated. [60] Mr. Corneau explained that incarceration will lead to risks to his health and safety because Correctional Services Canada ("CSC") may be unable to provide safe and adequate medical care for his ongoing needs and/or they are unable to mount an effective medical response if an emergency arises. He raises the following concerns: a) failure or delays in performing lifesaving measures may happen in prison; b) there may be delays in notifying health personnel and emergency responders if he is incarcerated; c) he has concerns that the quality and access to emergency services, especially at night or at times of lockdowns, will place him at additional risk; d) he said there is inaccessibility of emergency supplies in institutions; e) inadequacy of training of front‑line officers to perform life‑saving procedures is extant in prisons; f) the quality of efforts to ensure live body verification is questionable and works to increase risk; g) there is inadequate information sharing amongst staff and doctors, including family doctors who attend institutions; and h) there is a risk of interrupting his prescribed medications or treatments and the institution's inability to assure timely treatment. [61] Mr. Corneau highlighted administrative and operational concerns, including that prisoners are not certain of seeing the same physician on every visit which will disturb the continuity of his care. He argues that treating physicians lack autonomy and may have treatment decisions vetoed by CSC. He contends that pharmacists can exercise discretion that will result in the interruption of his medications that are not covered by the CSC's formulary. [62] He also claimed that he was at an elevated risk of adverse consequences because CSC could not protect him from contracting COVID‑19 and the resulting symptoms. On this point, I note that Mr. Corneau contracted COVID‑19 while living on his own outside of the institution. [63] Mr. Corneau recognizes that he can request the Parole Board of Canada to prioritize his early release due to medical circumstances, but he is not confident that CSC will provide services and medications to meet his needs in the interim, nor is there any certainty that the Parole Board of Canada will act on his medical concerns in a timely way. [64] Other aspects of his submissions include his argument there was insufficient evidence to support a finding on the sentencing that he had not used a condom when sexually assaulting the victim. He testified that he had not used a condom. Counsel argued that his evidence could not be accepted on the sentencing because I had rejected his testimony at trial on the issue of sexually touching the complainant without her consent. [65] Overall I rejected Mr. Corneau's testimony on the issue of assault, and specifically his denial of the offences. However, the court is entitled to accept all or some of a witness's testimony. My rejection of his denial of the offences does not prevent me from accepting his admission that he did not use a condom during the assault, based on his own testimony. On the contrary, I find he was truthful on that point. [66] Mr. Corneau tendered several letters of support of his sentencing position from the following individuals, each of whom attests to his good character: a) His sister S.E. was close to Mr. Corneau during their childhood. She said he is a caring individual who provides much love and affection for his children; b) M.C., Mr. Corneau's former spouse, noted that they have three children together and he pays a minimum of $1,000 per month support. She relies on this income to provide groceries and the things needed by their children, and without his support this family will suffer. She said he is a good father and his children rely and cherish their relationship with him; c) He also provided letters from N.C., R.V., and M.B., all of whom expressed support for him and reported his general good character when they have known him. [67] Counsel argued that Mr. Corneau has expressed some remorse for the victim's experience following the offence in question. He does not, however, express remorse for his part in committing the offence, which he denies. He is disturbed about the impact of the incident on the victim and is hopeful she will be able to move on with her life. He hopes any further harm to the victim may be limited. [68] Mr. Corneau has repeated those sentiments in remarks he has made to the court this morning, and I accept that he has a genuine concern and understanding of the important impact of these events on the complainant and Mr. Corneau's own family. Mr. Corneau is receptive to any counselling program that might be directed by his bail supervisor. He recognizes that a forensic sex offender program and sexual offender maintenance programs are available to him in the community, and would accept the conditions related to those programs if included in a probation order. [69] He argued that there are circumstances in his life that eliminate the need to include a punishment informed by the ranges established in other decisions. He understands that the court must consider the impact of this offence on the victim, his level of moral blameworthiness, and his other circumstances, including that he does not have a criminal record. He seems to argue that if my conclusions regarding his guilt are accurate, then the assault was out of character and he poses a low risk to reoffend, so there is no further need to specifically deter him. [70] Finally, he argues that the mitigating circumstances referred to above, including the serious impact on his family if incarcerated, should persuade the court to sentence him without incarceration. Analysis (Issue 1) [71] I accept that the range of sentences in this case is between two and seven years in prison. The objectives set out in s. 718 of the Code highlight the need to denounce and deter Mr. Corneau and others from committing similar offences and to separate offenders from the public where necessary. [72] On all of the evidence, this was a serious sexual assault which must be addressed by a denunciatory and deterrent prison sentence. As noted in R. v. Ewanchuk, [1999] 1 S.C.R. 330, 1999 CanLII 711 (SCC), sexual assault is a serious offence that interferes with human dignity, autonomy, and security of the person. The court noted at para. 28: 28 Having control over who touches one's body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society's determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual's right to physical integrity is a fundamental principle, "every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner": see Blackstone's Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal. [73] Punishment must reflect the moral culpability of the offender and be proportionate to the gravity of the offence and, to the extent possible, sentences should be proportionate to those imposed for similar offenders who committed similar offences under similar circumstances. [74] Mr. Corneau forced penetrative sex acts on an intoxicated victim. He has caused physical injury. He forcefully returned her to his basement suite after she ran out, and he proceeded to sexually assault her. In forcefully penetrating her while she pleaded for him to stop, he bears enormous moral blameworthiness for the act and for the impact on the victim. [75] I accept that this event was an anomaly in Mr. Corneau's history and that he has no record of prior criminal activity. However, the gravity of the offence and his moral blameworthiness are patently obvious. [76] I have reviewed the cases concerning the range of sentences cited by the Crown and by the defence. Crown provided a helpful analysis of those cases which I have taken into account. The accused relied on the decision of R. v. Tayo Tompouba, 2020 BCSC 308 [Tayo Tompouba], a decision of Marchand J. (as he then was), in which the court said: [70] While all sexual assaults are serious, my role as a sentencing judge requires that I draw some distinctions. In doing so, I do not wish to be taken as minimizing the seriousness of any of the offences in the comparator cases and certainly not what [the offender] has done. [77] I find the circumstances described in Skoyen are somewhat worse than those involving Mr. Corneau because the circumstances in that case were more violent. The offender choked and physically abused the victim during the sexual assault; he used vulgar names; and the incident was more prolonged and continued at two different locations rendering the actions a more serious crime. The victim's injuries were more pronounced in Skoyen than in this case and, like in this case, Mr. Skoyen denied the offences. He maintained the victim had consented to rough sex, and his risk to reoffend was deemed to be low to moderate. Overall, I find these circumstances to be more serious and severe than in Mr. Corneau's case. [78] The circumstances of the offence were also similar to R. v. Cartwright, except that in Cartwright, the offender did not physically restrain the victim from leaving the property. The Crown argued that the mitigating factors in Cartwright were similar to those in this case, although Mr. Corneau had been supporting several children. [79] In this case, the aggravating factors include: a) the age of the victim who was 20 years younger than Mr. Corneau; b) that he continued to touch A.M. against her express resistance and her objections; c) that when she attempted to leave the home, he brought her back into the home; d) he did not use a condom; e) A.M., had some bruising and genital tears; and f) A.M. had been significantly impacted, both emotionally and financially. Her peace of mind to engage in normal activity remains disturbed. [80] I accept the mitigating factors cited by the Crown including: a) that Mr. Corneau is a father who supports children in two families. He is paying $1400 per month in spite of being responsible for some arrears. His children will suffer significantly from his loss of support if he is incarcerated. b) He has been on bail for almost five years and has complied with those conditions without fail and assiduously. c) He has compromised health, including cardiac problems, that are being treated by specialists. [81] I do note that in R. v. Salehi, 2022 BCCA 1 [Salehi] at para. 65, the court commented on the distinction between when healthcare concerns are treated as mitigating factors and when they are simply considered as circumstances of an accused, and Mr. Justice Willcock commented that the distinction was really not relevant in how it was to be dealt with in the case before the court. It seems to me that those circumstances are similar in this case. [82] Mr. Corneau has expressed willingness to attend counselling and has expressed concern for the complainant and his family stemming from these events. He has assured the court that nothing in this nature will ever occur in his life again. [83] I also consider the following relevant circumstances. a) The Crown focused on Mr. Corneau's interview for the presentence report in which he denied substance abuse; however, this assertion is contrary to the report from S.M., who said he had been struggling with this abuse. As noted this contradiction can be considered a factor in his credibility, but is not an aggravating factor. Mr. Corneau chose not to follow the process in V.W. with regard to Mr. Hill or S.M. b) Mr. Corneau does not have a criminal record and his psychologist's report indicates that he is at low risk to reoffend, but he presents with six out of 22 factors in reference to the Sexual Violence Protocol, and may be vulnerable to committing sexual offences if he is under stress, particularly in a relationship. [84] After weighing the aggravating and mitigating circumstances, and considering the impact statement, I find that when the circumstances are measured against other cases, a significant period of incarceration is necessary to address and meet the objectives of protection of the public, deterrence, and denunciation, and the sentencing objectives in s. 718 of the Code. Overall, I find the circumstances in Cartwright to be similar to those events involving Mr. Corneau and, in the result, I have concluded that taking into account all circumstances of this offence and this offender, a sentence of 30 months would represent parity with other sentences for other offenders in similar, although not identical, circumstances. [85] However, this conclusion is subject to the impact on this sentencing stemming from Mr. Corneau's physical health (either as a mitigating circumstance or as a component of the overall circumstances). [86] Before sentencing Mr. Corneau, it is necessary to consider whether a lesser period of incarceration is appropriate due to exceptional circumstances and compromised health. Issue 2: Should the sentence be reduced due to his special medical circumstances? [87] As noted, Mr. Corneau did not take issue with the range of sentences for sexual assault set out in the submissions, other than to say that he believed that a suspended sentence for three years or a 90‑day intermittent sentence would be appropriate. He contends that his personal circumstances constitute exceptional circumstances that justify a departure from the range, because incarceration would be an unusually severe and disproportionate sentence in this case given his health problems: R. v. Voong, 2015 BCCA 285 [Voong] at para. 59; R v. Goodell, 2021 BCSC 735 at paras. 81-83. In lieu of incarceration, Mr. Corneau seeks this non‑custodial or largely non‑custodial sentence with lengthy probationary terms. If he is incarcerated, he seeks for the sentence to be intermittent. [88] The main thrust of his submissions centred on the compromises to his physical health that would place him at an unacceptably high risk of death or serious health complications by reason of incarceration. He says that CSC would be unable to respond to any medical emergencies stemming from his health issues. I note that in Salehi, the Court of Appeal endorsed the proposition that medical issues can make imprisonment more onerous and should be taken into account. [89] Mr. Corneau's concerns are outlined in two medical reports and several annual reports from the Office of the Correctional Investigator ("OCI"). Legal Framework [90] A starting point for this analysis is the comments in R. v. Suter, 2018 SCC 34 [Suter] at para. 46, where the majority held that it is important that a sentencing judge craft a sentence with due consideration for the particulars of the offence and the circumstances of the offender. To tailor a sentence to the circumstances of an offender and the offence, the court is required to examine collateral consequences that flow from the sentence, the conviction, or even the offence itself. [91] In Suter, Moldaver J. explained for the majority that collateral consequences may have the effect of rendering an otherwise fit sentence unfit based on the principles of parity and individualization. At para. 48, he said: [48] Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2(a) of the Criminal Code -- as they do not relate to the gravity of the offence or the level of responsibility of the offender -- they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. Collateral consequences may also be relevant to the objectives of general and specific deterrence and denunciation The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit. [Footnotes omitted]. [92] Collateral consequences cannot, however, be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender: see Suter at para. 56, and R. v. Pham, 2013 SCC 15 [Pham] at paras. 9 to 11. [93] As noted in Pham, the more the sentence departs from an otherwise appropriate sentencing range, the more likely it is to be disproportionate: [18] It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender. Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate. [94] In Pham, the Supreme Court affirmed that consideration of collateral consequences can also flow from the sentencing objectives of assisting to rehabilitate offenders. [95] The Crown referred to the decision of R. v. Salehi, 2019 BCSC 698, which was varied on appeal, as I have noted before. In Salehi, the Court of Appeal addressed the question of whether health circumstances are considered as mitigating or simply circumstances of the offender in the sentencing process. Willcock J.A. found although the issue was unresolved, it did not have to be decided; (para. 65): It is clear that medical conditions that make imprisonment more onerous should be considered in sentencing. It matters not under which rubric the offender's health is considered. What is significant is not where the appellant's deteriorating health was considered by the sentencing judge but how it was considered. [96] Salehi was a unique case dealing with minimum sentence, but provides a helpful discussion of health conditions and their impact in the sentencing analysis, including their potential to lessen sentences. Overall, this process engages the court's discretion that can be, but not must be, exercised and can include considerations of compassion: see Salehi at paras. 80 to 82. [97] In Salehi, the Court of Appeal summarized a number of cases that discussed the exercise of discretion in considering the offender's health concerns: [80] In Shah, Finch J.A. (as he was) writing for the majority concluded at 51: The Court can and should take such factors as health into account on purely compassionate grounds in appropriate cases. That is a discretion, however, which need not be exercised in every case of poor health. When one weighs the appellant's claim to compassion based on reasons of health against all the other circumstances of the case, the claim for compassion seems unjustified. Justice is to be tempered by mercy. But, in my view, an otherwise just sentence should not be reduced on compassionate grounds unless the evidence is current, clear and convincing. [Emphasis in original.] [81] In coming to that conclusion, Finch J.A. expressly considered the fact that of the eight years to which the appellant had been sentenced, he would have to serve something less than three years before he was eligible for parole. [82] In Potts, Rowles J.A. for the Court wrote: [85] It is relatively rare for the health of an offender to be taken into account in sentencing but there are cases in which an offender's health may be relevant. Although an offender's health status may be relevant at sentencing, in general these matters are best considered as part of the overall circumstances of the offender, rather than as a basis for deducting time from an otherwise appropriate sentence. There are cases in which an otherwise fit sentence may be reduced on compassionate grounds, but such reduction must be based on current, clear and convincing evidence: see R. v. Shah (1994), 1994 CanLII 1290 (BC CA), 94 C.C.C. (3d) 45 (B.C.C.A.); R. v. Shahnawaz (2000), 2000 CanLII 16973 (ON CA), 51 O.R. (3d) 29, 149 C.C.C. (3d) 97 (C.A.) at paras. 30-34; R. v. Alcius, 2007 QCCA 213 at para. 53. [83] In Holt, Dickson J. (as she was) described the "mitigating effect" of an offender's ill health, noting: [11] In some cases, an offender's ill health, advanced age, or both, may make an extended duration of parole ineligibility a particular hardship: R. v. Douglas, 2007 Carswell Alta. 1398. Depending on the circumstances, ill health or advanced age may have a mitigating effect on the sentence to be imposed: R. v. A.R., 1994 CanLII 4524 (MB CA), [1994] 4 W.W.R. 620 [M.B.C.A.]. In addressing this factor, the court should consider the extent to which prison authorities can accommodate the health concerns in question, as well as the quality of the medical evidence. In cases where there is a substantial risk that the offender will not live out the sentence, so long as the sentence is generally fit the court will be justified in giving effect to a plea of mitigation on compassionate grounds: R. v. Shah, 1994 CanLII 1290 (BC CA), [1994] B.C.J. No. 2261 [B.C.C.A.]. [98] Thus, R. v. Hill, 2007 BCCA 309 [Hill] and R. v. Potts, 2011 BCCA 9 [Potts] dealt with issues of sentence reductions on compassionate grounds, requiring those decisions to be based on current, clear, and convincing evidence, and in most cases an offender's health status would be relevant to the overall circumstances, but not as a basis for simply deducting time from an otherwise appropriate sentence. [99] Overall, Mr. Justice Willcock in Salehi said it would be an error not to consider a medical condition that "is likely to result in hardship exceeding the normal consequences of conviction and sentence": para. 66 (emphasis added). [100] Mr. Corneau referred to a number of authorities including Voong; R. v. McKibbin, 2020 BCCA 337; R. v Aftergood (26 January 2012), Victoria 145042, (B.C.S.C.), and Tayo Tompouba, urging the court to consider factors that might warrant a sentence below the usual range. [101] I was also referred to the most helpful decision of the Nova Scotia Provincial Court in R. v. Al-Awaid, 2015 NSPC 52 [Al-Awaid], on this point. In that decision, the Provincial Court judge reviewed extensively the authorities that have addressed collateral consequences of imprisonment as a basis for sentencing without incarceration. [102] In Al‑Awaid, Derrick P.C.J. reviewed the evidence contained in the Correctional Investigator's Reports from 2013-2014. The offender's health had many similarities to Mr. Corneau's health. The court admitted the reports as hearsay evidence pursuant to s. 723(5) of the Code for the purposes of informing the court about the delivery of healthcare in the federal penitentiary system. Quite reasonably, the sentencing judge said it would be irresponsible to sentence the offender without considering the report on the delivery of health services in prison settings. Derrick P.C.J. accepted the reports that reflected significant concerns about CSC's ability to safely and effectively manage that offender's health problems. She observed that premature mortality was a concern resulting from CSC's healthcare deficiencies. [103] In Al‑Awaid, the court accepted that the reduced sentence for this reason was to be based on "current, clear and convincing evidence" that CSC cannot safely and effectively monitor and treat the offender's issues. Derrick P.C.J. concluded there was clear, coherent, and compelling evidence of a very significant problem and a high risk of identifiable complications because there was a risk the offender would experience life‑threatening consequences leading to a "uniquely high risk of a hypoglycaemic incident with potentially fatal consequences." (para. 152). She recognized that offenders with diabetes can be managed in correctional systems; however, she explained, "I am not persuaded that this diabetic can be and it is this diabetic that I am sentencing." (para. 152) [Emphasis in original]. [104] The court explained the criteria for the decision, saying (at para. 154): . . . I need to be confident that incarcerating Mr. Al-Awaid will not result in a disproportionate sentence, that is, a sentence rendered disproportionate because it causes an irreversible deterioration of his health or even death. I do not have that confidence. [105] Ultimately, Mr. Al‑Awaid, who had been convicted of several immigration fraud charges, received a conditional sentence of two years less one day in lieu of a custodial sentence. [106] Mr. Corneau also relied on the decision of Marchand J.(as he then was) in Tayo Tompouba where an individual convicted of sexual assault was given 90 days' imprisonment to be served intermittently and 36 months' probation. The offender was at risk of deportation if he received a custodial sentence exceeding six months. Marchand J. considered an intermittent sentence with probation to be fit, considering the collateral consequences stemming from the offender's personal circumstances, and in particular the unduly harsh effect that a lengthy sentence would have on his children and family in Cameroon. He relied on Pham, and noted that the immigration consequences provided significant specific deterrence into the future. [107] In sentencing individuals with serious medical conditions, the court must analyze the risk that incarceration will detrimentally impact the offender's health needs. This requires the court to examine the offender's circumstances outside the institution, as well as the availability of healthcare resources in the institutions. This must be done in light of CSC's obligations to provide adequate care and necessary treatment for inmates. In R. v. Crimeni, 2005 BCCA 431 at para. 16, the court said: [16] Provincial institutions must deal with patients who suffer from all types of diseases from HIV, AIDS and cancer to heart problems. They have a duty to inform themselves of their patients' health and to properly care for them. . . . [108] Mr. Corneau's submissions confirm that CSC is obliged to provide safe and continuing care for inmates and to address all of those health concerns, referring to Salehi at para. 93. There the court said: [93] . . . The Crown correctly submits that the ordinary rule is that accommodation of medical conditions in prison is best dealt with directly through administrative channels. And, "this general principle presupposes that any post‑sentencing decisions made by corrections officials are properly made within the law and in accordance with established principles". Reference to that rule, however, cannot assist in determining how long corrections officials are to be precluded from granting parole or temporary unescorted absences, or exercising one of the modes of accommodation: exceptional parole. [109] Also in Salehi, the court noted that the Parole Board can take health issues into account. It said (at para. 67): Section 121 of the CCRA gives the parole board the authority to grant parole to relieve against excessive hardship, but not against excessive hardship that was reasonably foreseeable at the time of sentencing: 121 (1) Subject to section 102 [the general criteria for granting parole] parole may be granted at any time to an offender (a) who is terminally ill; (b) whose physical or mental health is likely to suffer serious damage if the offender continues to be held in confinement; (c) for whom continued confinement would constitute an excessive hardship that was not reasonably foreseeable at the time the offender was sentenced [Emphasis added.] Evidence of Mr. Corneau's Medical Conditions [110] Mr. Corneau has coronary artery disease. He can prevent recurring heart attacks with medications to control his cholesterol and blood pressure. Nonetheless, any chest pain he suffers may need to be dealt with at an emergency room with promptitude. [111] He has in the past experienced leg vein clots, which place him at risk with any "prolonged immobilization from trauma or other medical conditions". His last experience with deep vein thrombosis was in 2012. He currently receives anti‑coagulation medication due to his risk of paroxysmal atrial fibrillation. He is suffering from some significant heart disease. [112] Dr. Ng has been Mr. Corneau's family practice physician since September 2000. Nothing in Dr. Ng's opinion forecasts a risk of clots or any serious consequences due to Mr. Corneau's confinement in prison, although he commented that Mr. Corneau is at risk for major bleeding with any trauma to his head, chest, or abdomen. Any such trauma would need urgent evaluation and treatment as such trauma could be fatal. [113] Dr. Ng's medical report dated June 9, 2021, included the following information about Mr. Corneau's health: a) Mr. Corneau presents with palpations and skipped heartbeats with concerns over his mitral valve. He has presented to the emergency room three times for cardiac investigations where he received a Holter monitor and echocardiogram. He had several symptoms and was referred to the cardiologist, who had diagnosed benign palpations. b) Mr. Corneau's second condition stems from blood clots in his left leg veins in 2008. He had deep vein thrombosis in 2012 without any recurrence since. c) His third problem is coronary artery disease resulting in chest pain in 2016. He had a clot in an anterior artery that was stented. He was prescribed a number of medications for daily use. d) Next, in 2017, he suffered from renal stones that eventually passed spontaneously. e) He had an electrocardiogram in November 2020 which was normal but ambulatory cardiac monitoring showed a rare super ventricular condition. Mr. Corneau continued to experience palpations of short duration, save for one event in December 2020 that lasted a few hours. Medications failed to avert the problem and he was treated under sedation and referred to a rapid access clinic. He was placed on new medications to protect him from strokes. f) Commencing in July 2020, Mr. Corneau reported aggravated chest pain due to some stresses in his life. His medications were changed, but other studies were normal. g) In February 2021, Mr. Corneau was continuing to have heart palpations. He was started on new medications twice a day to control his heartrate. h) In February 2021, Mr. Corneau was referred to a sleep specialist, diagnosed with mild obstructive sleep apnea. He is currently using a continuous positive airway (CPAP) device for sleep apnea. i) In April 2021, he experienced right‑eye blurriness and was examined to rule out stroke. None was diagnosed. j) In May 2021, Mr. Corneau experienced gout. k) In fall 2021, Mr. Corneau contracted COVID‑19. He reports that he has ongoing lingering symptoms, although he is no longer positive. l) As of June 14, 2021, Mr. Corneau was expecting an evaluation by an internal medicine specialist to assess his needs and to address a treatment that is intended to block abnormal heart rhythms. He was expecting a further examination by a sleep apnea specialist. [114] Mr. Corneau was referred to Dr. Gerami Omid when he was started on additional medications, including a beta blocker. Dr. Gerami Omid recommended a cardiac electro physiologist assessment "if his paroxysmal atrial fibrillation becomes more symptomatic". [115] Mr. Corneau's paroxysmal atrial fibrillation is the most problematic of his current conditions. It can result in a clot shooting from his heart and causing a stroke. His previous heart attack and hypertension put him at a higher risk for stroke from paroxysmal atrial fibrillation and in the past Mr. Corneau had declined anti‑coagulation medications related to his leg clots. He is currently, though, taking such medications due to his concerns over atrial fibrillation. Daily medications reduce his risks, provided he takes medications every 12 hours. Although the medications have not entirely eliminated the risk of stroke, if he experiences chest pain he will need immediate presentation at a hospital for treatment. [116] As noted, Mr. Corneau also suffers from sleep apnea. Any difficulty using a CPAP machine could increase the tendency to paroxysmal atrial fibrillation. Again, nothing in this diagnosis suggests an increased risk to his health as a result of being confined to a prison institution. [117] When argument ended, I had been informed that Mr. Corneau had been examined by Dr. Gerami Omid, the internal medicine specialist, to evaluate his atrial fibrillation and the potential of an ablation, which is a treatment used to correct this risk or to prevent this risk. Counsel informed me that they had requested an updated report from Dr. Omid, but a report had not been received and as of the conclusion of the sentencing, no report from that doctor was received, save to say that he did indicate in a letter that Mr. Corneau had reported that he had been present at the hospital on a number of occasions between December 2020 and January 2022 concerning his palpations, chest pain, and shortness of breath. The doctor said: Unfortunately during each in these visits he has spontaneously converted back into a sinus rhythm while awaiting at triage before he could be assessed by emergency physician. With that being said he has had innumerable episodes of recurrent atrial fibrillation at home where he had not sought medical attention but essentially waited to see if he would spontaneously cardio overt back to normal sinus rhythm. He has only presented to hospital when he has had episodes of prolonged symptomatic atrial fibrillation lasting longer than 45 minutes to an hour where he had not converted spontaneously back to normal sinus rhythm. Later he said with that being said he has had frequent episodes anywhere from 3 to 5 times a week and have understandably affected his overall quality of life and sense of well-being. [118] Again, at a recent appearance Mr. Corneau did not attend, Crown counsel pointed to the coincidental pattern of his attendance at hospital for atrial fibrillation as coinciding with dates of this sentencing process. While this was curious, the incidents do not inform the court concerning Mr. Corneau's circumstances or condition, save to say that it is possible that when facing the final decision on this sentencing process, Mr. Corneau suffers heart symptoms due to the anxiety and concern about the outcome. [119] Mr. Corneau argued that he requires continued and prompt treatment and emergency response to his conditions, and he contends this treatment is not readily available in federal institutions, a conclusion which he says is supported by letters from the regional manager of clinical services, as well as the office of the correctional investigator. [120] Mr. Corneau did not provide any detail concerning his current circumstances; that is, where he was living, his future medical appointments, the risks he may face in the community, other than that he lives on 58th Avenue in Langley or Aldergrove, where he lives with a woman and two children. Other than providing the location of his residence, he did not provide details concerning his access to medical care or hospital emergency services where he lives and works. Dr. Ng is located in Brookswood, which is part of Langley. Mr. Corneau had been treated by Dr. Murphy in Gibsons, where he had been working from time to time, but we have no indication of his circumstances in that community. [121] More recently, Mr. Corneau, beginning in February, developed or contracted COVID‑19 again and continued to experience symptoms, including fatigue and brain fogginess, which were quite apparent on his last appearance in court when I was intending to give these reasons. Evidence of the Availability of Suitable Healthcare in Prison OCI Reports and Academic Article [122] Mr. Corneau produced copies of annual reports from the Office of the Correctional Investigator from 2013 to 2021. He relied on an academic work by Adelina Iftene: "Incarceration in Canada: Risks to and Opportunities for Public Health" in Tracey Bailey, Tess Sheldon, and Jacob Shelley, eds, Public Health Law and Policy in Canada (Toronto: LexisNexis, 2019) [Iftene, "Incarceration in Canada"] He says the academic work supports his assertions that his health and safety, considered in the context of the medical report from Dr. Ng, will be dangerously compromised leading to unusually severe consequences. [123] These reports and authorities highlight flaws and deficiencies in the delivery of some healthcare services to prisoners in a federal institution. They chronicle the limitations to Mr. Corneau's access to medications, criminal [sic] equipment, and physician care. The reports also question the independence of treating physicians in the prison context, and the fact that prison management may veto or modify healthcare decisions that could affect him in the event of a significant cardiac event. He contends that the statistical data shows that incarcerated individuals die at much younger ages than the general population. He contends that he may be unable to access specialist treatment and follow‑up care in prison, which presents a danger to him, and he argued that the CSC staff who testified did not maintain or have access to the kind of data necessary to reassure the court that CSC could reliably address his medical situation and resulting health risks. [124] As an example, he argued that in the midst of a lockdown, the court cannot be satisfied the institution would be able to address or access emergency services to transport him to a healthcare facility outside of the prison. [125] I took Mr. Corneau's submissions in conjunction with the OCI reports to suggest that medical services, hospital access, and emergency services are more readily available in the community in contrast to their availability in the prison system. While this conclusion may at some level seem reasonable in a general sense, it is not clear that these shortcomings actually exist in the institutions where Mr. Corneau may be incarcerated. [126] The reports from the OCI provided to the court covered the years 2013 to 2020, and in Ms. Iftene's report, she said research conducted on healthcare in prisons provides evidence that delivery of healthcare has serious gaps: Research conducted on healthcare in prisons provides evidence that the delivery of healthcare has serious gaps. For example, the lack of health professionals across institutions leads to long waiting times for seeing a nurse or a doctor, even for urgent matters. Most institutions do not have a nurse on - site at all times. Interruptions to medication provision have been regularly noted. There appear to be serious issues with respect to the availability of appropriate medications, especially in relation to the management of pain. Like provincial institutions, there are significant challenges associated with the prison environment beyond the quality and quantity of healthcare services which nevertheless add to the challenges respecting delivery of health services. Challenging infrastructure, double bunking and overcrowding, lack of meaningful programming and exercise, inadequate nutrition, isolation, burnout due to prolonged incarceration, and insufficient harm reduction services further deteriorate the health of an already at risk population [Citations omitted]. [127] The author went on to note that there are many barriers to treatment in a federal institution, both in terms of availability and distribution. Often physicians discontinue medications because the institutions will not provide them to the prisons. [128] Mr. Corneau's initial arguments on this sentencing process included warnings about healthcare and the risks to his health if he contracted COVID‑19, yet we know that he contracted COVID‑19 twice while he was not incarcerated. [129] The Crown tendered two witnesses from CSC and a third from the provincial system to explain the services and resources in the institutions where they serve. They each underscored the systems that deal with the healthcare concerns that have been highlighted by Mr. Corneau. Karen Sloat (Assistant Warden, Pacific Institution) [130] Karen Sloat is the assistant warden at the Pacific Institution. She described the initial assessment measures taken with regard to new inmates and described measures in place in the prison to address health issues. [131] On entering the prison, an offender is sent to the Regional Assessment Centre where they remain for 70-100 days. In that facility, there is 24‑hour nursing care and a nursing assessment is done within 24 hours of arrival. There are protocols to ensure inmates can be transferred to hospital where necessary. While at the Regional Assessment Centre, an inmate is assessed for security and healthcare needs and staff will follow up with an inmate's community caregivers. [132] In prisons, there are first aid kits and automatic external defibrillator devices ("AED"), both of which staff are trained to use. These kits and devices can be accessed by corrections officers and brought to inmates very quickly if staff perceive an emergency during the night. The AED devices are checked and maintained by staff, who usually attend to the inmate within one minute of an emergency button being pressed or an emergency call being received. [133] Corrections officers communicate with managers who call for medical advice and/or ambulances if necessary. [134] During the night, CSC staff check inmates at one‑hour intervals. [135] Ms. Sloat acknowledged that inmates do not necessarily see the same physician for each visit. There is a schedule of physicians who attend the prison and they receive the patient records. [136] She could not say what response time staff expect from the emergency medical services. However, she was unaware of instances when the emergency services did not satisfy their needs. She could not comment on the impact of lockdowns, but was generally confident that all inmates' needs for emergent services can be met. Ms. Sloat is aware of the OCI reports and the special reports dealing with institutions in B.C. The institutions treat the OCI reports seriously and may respond to the comments as needed. Michelle Smith (Regional Manager of Clinical Services, Pacific Region) [137] Michelle Smith, who is the regional manager of clinical services in the Pacific Region for CSC, testified. She is involved in the healthcare division of Correction Services Canada. When first employed by CSC, Ms. Smith was a registered nurse. She worked in that capacity for 13 years. She was dedicated to the admission process of individual offenders entering the prison system and confirmed that institutions are able to obtain an inmate's medical records with their consent. [138] At most institutions, registered nurses are on duty from 7:00 a.m. to 7:00 p.m. She indicates that inmates have a call button in their cells to notify staff of emergencies. The practice involves one officer attending immediately after a button is pressed, and after an emergency button is pressed, the manager is contacted. The officers deal with obtaining emergency services and ambulances in appropriate circumstances. [139] Corrections officers are trained in CPR and the use of AEDs. Usual response times are within one minute of activating an emergency button. It will normally take five minutes for an AED device and a trained staff member to attend to an inmate. Generally, after calling for an ambulance, emergency medical services attend prisons within 15 to 30 minutes. [140] Ms. Smith was not fully apprised of training, but said nurses receive national training every two years. [141] She said inmates can usually see a physician within one week of a request. [142] She discussed the availability of CPAP machines and explained that persons with mild sleep disturbances are not provided CPAP machines, whereas others with moderate to severe apnea are provided with those devices. However, if an inmate attends the Regional Assessment Centre with their own machine, they would be permitted to retain that device after it was examined for security purposes. Mr. Corneau would be able to keep his own CPAP machine. [143] She confirmed that contracted physicians are on call during 12‑hour shifts in the medical centre. Doctors are on call 24 hours per day, and doctors usually come to institutions on a regular basis, three times a week. [144] She confirmed that family doctors attending the institutions are able to make referrals to specialists and wait times are the same as in the community. If there are security difficulties in an institution, doctors' appointments can be rescheduled. [145] Inmates are prohibited from bringing their own medications into the institution. Corrections pharmacies review and supply medications for inmates, and medications are distributed generally from a central place in the prison. There is an approved list of medications and generic drugs may be substituted for named prescriptions. [146] Institutions provide essential healthcare, including X‑rays, MRIs, dental care, and foot care. Contingency plans and measures are in place to provide essential services during lockdowns, and they have never had a situation where essential services could not be provided. [147] Ms. Smith testified that the institutions make efforts to keep existing medical appointments for inmates or to schedule new appointments at different times, sometimes for security reasons. [148] She testified that recovery from open‑heart surgery depends on an inmate's needs. Recovery can take place at an outside hospital or where possible the inmate may be transferred to the institution's hospital. [149] There was some information Ms. Smith could not provide under cross-examination. She did not have statistics concerning the incidence of refusing drugs to an inmate. She did not know the routine of physician scheduling at institutions, but said that there would be clinics two to three times per week lasting three hours on each occasion. She was not able to provide an estimate of wait times for referring inmates to outside doctors or statistics regarding follow‑through on those requests. Leanne Speiss (Assistant Deputy Warden, Fraser Region) [150] Leanne Speiss, assistant deputy warden at the Fraser Regional Correctional Centre, oversees healthcare and internal programs for the provincial institution and she described similar services available at those institutions. [151] She described the use of the CPAP machines that are not generally available in the institution, but can be obtained when ordered by a physician. [152] She described the training of staff and processes for obtaining medical devices (e.g., inmates can bring their own CPAP machines). She described the emergency response procedures in the institution, including that staff typically arrive within 10 to 30 seconds to an emergency. She said there was no emergency healthcare on site from 11:00 p.m. to 4:00 a.m. in the provincial institutions. [153] She, too, described rebooking procedures for medical appointments and physician attendances at institutions. She did not have the records of response times to emergencies in the institution, but said logs are kept for seven years. [154] In the prison, staff make observations of inmates during the night to ensure the well‑being of each inmate. Analysis (Issue 2) [155] The testimony of these three healthcare individuals was thorough and supported the Crown's argument that the institutions are well‑equipped and the staff well‑trained to deal with emergency medical situations. Ongoing care is maintained both inside and outside the institution, and there is no evidence or record of the prison system compromising the health and safety of an inmate in any way described in the OCI reports as Mr. Corneau submits might occur. The care in prison will not be the equivalent of the care a person might be expected to receive when not in an institution. However, there is no evidence concerning the differences between the efforts to preserve health and safety of inmates in custody and the services available, and the same criteria for persons who are outside custody. For example, there was no detailed records concerning the response times for ambulances to the CSC institutions, but similarly there are no records concerning the response times for ambulances in the community. [156] Mr. Corneau argued initially that the risks presented by COVID in prison represented an increased risk to him while he is in custody. Nonetheless, as I have noted, he contracted COVID while on release in the community. [157] As noted in Salehi at paras. 80-82 (citing to Potts and R. v. Shah, [1994] B.C.J. No. 2261, 1994 CanLII 1290 (BCCA)), it would be rare that health of an offender impacts the nature and extent of sentencing. Overall, it is the circumstances of the offender, including their health, that must be considered in assessing whether to reduce an otherwise appropriate sentence for a person with significant risks that cannot be addressed within prison. A lengthy prison term might amount to a disproportionate sentence: Potts at para. 85: There are cases in which an otherwise fit sentence may be reduced on compassionate grounds, but such reduction must be based on current, clear and convincing evidence: see R. v. Shah (1994), 1994 CanLII 1290 (BC CA), 94 C.C.C. (3d) 45 (B.C.C.A.); R. v. Shahnawaz (2000), 2000 CanLII 16973 (ON CA), 51 O.R. (3d) 29, 149 C.C.C. (3d) 97 (C.A.) at paras. 30-34; R. v. Alcius, 2007 QCCA 213 at para. 53. [158] In para. 69 of Salehi, the court said: [69] These provisions make it clear that sentencing judges are assumed to have weighed evidence of excessive suffering that can be foreseen at the time of sentencing. It is an error to expect the parole board to address the hardship arising from the continued confinement of an offender suffering from a degenerative medical condition at the time of sentencing when there is evidence of the foreseeable progression of the disease . . . [159] The obvious tension between the Crown position and the evidence of Mr. Corneau's heart issues and strokes is whether there is current, clear, and convincing evidence that he will face a sufficiently higher risk of an adverse outcome when in prison than an otherwise healthy individual in the prison. [160] The OCI reports frequently discuss the absences and the shortcomings of professionals in the facilities. While I accept that these reports reflect an analysis of data compiled over time, they are not a comparison with the actual healthcare services in the penitentiaries located in British Columbia. For example, the absence of healthcare professionals on site 24 hours per day does not necessarily reflect any lesser healthcare service than might be available to Mr. Corneau when he was living in his Aldergrove or Sunshine Coast residence. [161] On the evidence presented, I am not able to find that a sentence of incarceration would be anything in the nature of a "death sentence" nor an extraordinarily harsh sentence for Mr. Corneau. As has been noted in the cases, there must be clear, current, and convincing evidence to support this finding: Potts at para. 85. I agree with Rowles J.A.'s comments in Potts at paras. 86-87: [86] Without challenging the trial judge's finding that Potts' various ailments make serving time in custody "more arduous" than would be the case for a healthy prisoner, the Crown submits it was inappropriate to reduce Potts' sentence by six months on account of his medical conditions. Drug offenders convicted of much less serious offences, with less aggravated backgrounds and more significant medical conditions, have been refused credit or reduction in an otherwise fit sentence, considering the availability of medical treatment within the prison system, and the availability of early parole based on medical necessity: see for example R. v. Hill, 2007 BCCA 309, 221 C.C.C. (3d) 472 at para. 42. [87] I agree with the Crown's submissions on this point. [162] As noted in Al‑Awaid, assessing an offender's medical circumstances for the purposes of determining a fit sentence is a "highly‑individualized exercise" (para. 27). Derrick P.C.J. agreed that it was unreasonable to "expect perfection when it comes to the delivery of healthcare in prison". It was equally fair to observe that a prison sentence should not be a death sentence (para. 137). She concluded that the correctional investigator's report identified deficiencies in the delivery of healthcare in the penitentiaries that "may well inconvenience or disadvantage many offenders with health problems who are not sentenced to prison", but the court noted, "I am not addressing the issue at that level" (para. 143). Rather, her concern was that a sentence of incarceration would be disproportionate for the offender in question and could lead to irreversible deterioration of his health. [163] By contrast, the evidence in this case concerning Mr. Corneau's circumstances does not provide clear, coherent, or compelling evidence that incarcerating him will expose him to the types of risks that would make the sentence disproportionate. [164] There is no medical evidence suggesting that incarceration will increase Mr. Corneau's risk of a heart attack or clotting or stroke. His high blood pressure and his previous heart attack increased his risk of stroke from atrial defibrillation. However, there is no clear, coherent, or convincing evidence that his incarceration would alter the risk of any of these events occurring. I find it more likely than not that the CSC will be able to meet the needs of Mr. Corneau within the institution. [165] Importantly, there is no evidence from Mr. Corneau concerning his current living circumstances and, accordingly, nothing to convince the court that his treatment and access to treatment facilities and emergency care in custody will be any or significantly different than he experiences living outside of the institution. [166] I note that in the decision in Al‑Awaid, the court was able to discern from the evidence that there was a significant risk of death. [167] There is no evidence suggesting that Mr. Corneau's health outcomes will deteriorate while he is in custody, or that the institutional framework will have an adverse effect on him that will cause a deterioration in his health. I note from comments made by counsel preparatory to these reasons that it may very well be that Mr. Corneau has had a serious reaction to the anxiety and risks of incarceration that triggered some of the atrial fibrillation events that he has experienced, but nothing in the evidence has convinced me that actually being in the institution, things will happen or exist that trigger atrial fibrillation or will render him at serious risk of adverse health conditions. [168] The court in Al‑Awaid noted the opinion of the family doctors and specialists had tipped the scales. The accused's doctor had grave concerns about the immediate and long‑term effects of a prison sentence and believed this would present a significant risk that his diabetic control would deteriorate and that his eye and kidney complications would progress. In that case, there was current, clear, and convincing evidence the offender's healthcare status was too tenuous for the court to take the risk, and in the end the court was satisfied that the CSC could not safely and effectively monitor or treat those concerns. [169] In the circumstances of this case, I am satisfied that Mr. Corneau suffers from cardiac disease and his other health problems, but that the evidence provides little in the way of assessment or analysis of the risk factors connected with Mr. Corneau's incarceration, nor the potential of deficient treatment options in prison. I do not know if there is an increased risk that Mr. Corneau will experience stroke or adverse cardiac events because of or while in custody, and unfortunately the absence of opinion evidence on that point was significant in my determination of the outcome in this case. [170] As I have noted, while there were questions concerning hypothetical possibilities of lockdowns preventing the offender from receiving emergency transport, there was simply a paucity of evidence concerning the risk of such an event interfering with Mr. Corneau's healthcare needs, and overall I conclude that his evidence on this sentencing process lacked the current, clear, and convincing evidence to meet the threshold described in Potts. [171] The offence was serious and Mr. Corneau's moral culpability high and, all other things being equal, the facts justify a sentence in the penitentiary. Overall, I have taken into account the circumstances of Mr. Corneau's health, including his ongoing heart condition, and I have weighed the aggravating and mitigating factors that have been set out and Mr. Corneau's personal circumstances, and I remain persuaded that his sentence should be a penitentiary term and thus I will order. [172] Mr. Corneau, please stand up, sir. Conclusion [173] Considering all of the factors presented and a comparison with the other cases, I find that a proportionate sentence for this offence is 30 months' incarceration. I sentence you to 30 months in prison. [174] I make the following ancillary orders requested by the Crown: a) pursuant to s. 487.051(1) of the Code, you shall provide samples of one or more bodily substances for the purposes of a forensic DNA analysis; b) pursuant to s. 109 of the Code, you will be prohibited from possessing weapons for a period of 10 years; c) pursuant to s. 490.012 of the Code, you will be required to comply with the Sex Offender Information Registration Act for a period of 20 years; and d) pursuant to s. 743.21 of the Code, you are prohibited from contacting the victim for any time during which you are in custody. [175] Thank you. "Armstrong J."