R. v. C.R.F.

2024 BCSC 853 R. v. C.R.F. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. C.R.F., 2024 BCSC 853 Date: 20240403 Docket: 76426 Registry: Prince George Rex v. C.R.F. Restriction on publication: A publication ban has been imposed under Section 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or a witness. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Gibb‑Carsley Oral Reasons for Sentence Counsel for the Crown: T. Gamble Counsel for the Accused: K. Jones Place and Dates of Hearing: Prince George, B.C. April 2 and 3, 2024 Place and Date of Judgment: Prince George, B.C. April 3, 2024 [1] THE COURT: Before I begin, I remind the courtroom that there is a publication ban in place in this proceeding, and so anything that could identify the complainant in this matter, J.C., cannot be published. I. Introduction [2] On July 18, 2023, I found C.R.F. guilty of one count of sexual assault contrary to s. 271 of the Criminal Code. [3] Yesterday, on April 2, 2024, I heard submissions of the Crown and C.R.F.'s counsel regarding the appropriate sentence. [4] These are my reasons for sentence. II. Circumstances of the offence AND VICTIM IMPACT A. The Offence [5] The details of the offence are set out in my judgment of July 18, 2023, indexed as R. v. C.R.F., 2023 BCSC 1247 ("RFJ"). [6] By way of brief summary, on May 26, 2020, C.R.F., who was 47 years old at the time, and his wife, D.F., were invited to a dinner party at the trailer of R.R., one of their neighbours in the trailer park. The victim, J.C., who was 24 years old at the time, was also in attendance. J.C. was the best friend of R.R. at that time. [7] All four individuals at the party had been drinking. I found as a fact that J.C. had been drinking heavily and was seriously intoxicated at the party. Further, I found as fact that C.R.F. was aware that J.C. was intoxicated before and during the time of the offence. [8] I commented in my reasons that I found the offender, C.R.F., was generally an honest and straightforward witness. Indeed, it was his explanations to persons in authority and his testimony in court that provided much of the evidence of a sexual assault of J.C. [9] The evidence was that C.R.F. was in the washroom and when he exited the washroom at the party, he returned to the family room and kitchen area and saw his wife, R.R., and J.C. engaged in some form of sexual activity in which they were topless. [10] J.C. testified that she and C.R.F. were then dancing and the next thing she knew her pants were down. The complainant testified she did not know how her pants were taken down: RFJ at para. 13. I did not make a finding of fact as to who lowered J.C.'s pants, but found that at some point C.R.F. found himself behind J.C. He attempted to perform cunnilingus on her but was not able to do so, because his throat was dry, and so he "couldn't do anything": RFJ at para. 50. [11] C.R.F. then touched J.C.'s vagina with his hand, inserting the index finger of his right hand from the tip of the finger to his first knuckle into her vagina: RFJ at para. 51. [12] The evidence was that R.R. then yelled at C.R.F. that he had crossed the line. C.R.F.'s wife also yelled at him, and C.R.F. and D.F. left R.R.'s home. B. Victim Impact [13] Section 718.2(a)(iii.1) of the Criminal Code deems a significant impact on the victim to be an aggravating factor. J.C. did not provide a victim impact statement. [14] Section 722(9) of the Criminal Code provides that evidence concerning the impact of a victim is not restricted to impact statements. Victim impact may be a conclusion drawn from the circumstances of the offence or findings at trial. [15] I am satisfied that there is sufficient evidence before me from the findings at trial, my observations of J.C. at trial, and from the pre-sentence report ("PSR") that the offences have had a significant impact on her. [16] In the PSR, which I recognize is hearsay evidence, the following was reported of the impact on J.C.: she advised that her world has changed due to the sexual assault. [J.C.] advised that she already suffers from bipolar disorder and the trauma from the assault has exacerbated her manic episodes. Moreover, [J.C.] suffers from insomnia and social anxiety. In particular, [J.C.] stated that when she is trying to sleep, she is worried that somebody will enter her room and assault her. [J.C.] is currently on a waitlist for counselling. [17] The Crown also advises me, from his conversations with the victim, which again I recognize is hearsay evidence, that the assault has had a profoundly negative impact on her. Indeed, C.R.F.'s counsel fairly acknowledged that it was a serious offence and that he had no doubt that the impact on J.C. was serious. [18] Finally, I note that during the trial, from J.C.'s evidence, I was acutely aware of the negative and profound impact that the assault had on her mental well‑being. The impact of the trauma on J.C. is captured in my reasons for judgment at paras. 16 to 18: [16] The complainant recalled going outside and having a cigarette. She said D.F. left the party and that R.R. went inside. The complainant said that she went into shock. She fell asleep. She remembered waking up and talking with R.R. The complainant showered because she felt "disgusting". She "just wanted to jump out of [her] skin". The complainant testified that she then decided to go to a local hospital to undergo a sexual assault evidence kit examination. [17] The complainant testified that she did not plan to have sexual activity with the accused on the evening at issue. She said she did not find the accused attractive. [18] The complainant testified that the following morning, D.F. tried to convince her that the accused only used his fingers to touch her vagina. She said this did not make her feel better. [19] Given the foregoing, even in the absence of a victim impact statement, I accept that the impact of the assault on J.C. is significant and profound. Her bodily integrity was violated in a serious manner during the assault and she has lost the ability to feel safe. [20] I also note that at the time of the assault, while not a youth, J.C. was a young adult of only 24 years of age. As such, this event may have an increased impact on her future view of the world and ability to feel safe. Given the foregoing and coupled with pre‑existing mental health issues, I accept that for the purposes of sentencing that this offence has had a serious and profound impact on J.C. that continues to this day. III. Circumstances of the Offender A. Personal Background, Character, and Current Circumstances [21] I was provided with information about C.R.F. from the PSR prepared by Aaron Hutchinson of the Prince George Adult Probation Office, filed with the court on September 13, 2023. I was also provided with a Forensic Psychiatric Service psychological assessment dated December 7, 2023, prepared by Dylan Gatner. [22] C.R.F. is currently 50 years old. He is a Caucasian male who was born in Surrey, B.C., and primarily raised in Prince George. He reports having a good childhood and he informed the report writer that he enjoyed working alongside his father doing mechanical repairs and carpentry. [23] His older brother, D.F., was murdered in 2017, which was apparently related to D.F.'s involvement with illicit drugs and the drug trade. C.R.F. has had no involvement with illicit drugs or the drug trade. The loss of his brother is a partial source of ongoing mental health issues for C.R.F. [24] As a child, C.R.F. had difficulties in school, which I infer from the reports before me are related to learning disabilities, and C.R.F. also struggles with ADHD, OCD and dyslexia. I will return to his health issues in a moment. [25] C.R.F. graduated from a special education program via Prince George Secondary School. C.R.F. stated that he suffered from dyslexia and had good days and bad days throughout school because he was bullied for being different. C.R.F. stated that he engaged in a couple of physical altercations whilst in school. [26] C.R.F. is currently married to D.F. and has been for about the past three years. He has a small business and it has been in operation for three years. He says that he repairs chainsaws, lawnmowers, and snowblowers, and also performs diagnostics on cars at individuals' homes through advertising on Facebook Marketplace. Prior to this, C.R.F. did odd jobs for people he met at Canadian Tire and Home Depot, and he would look for odd jobs in the classified sections. He also receives long‑term disability benefits. [27] Returning to his health issues, C.R.F. stated to the report writer that he suffers from ADHD, dyslexia, OCD, arthritis (spine and hips), cardiomyopathy, enlarged prostate, depression, and anxiety. In respect of his heart issues, while I was not provided with affidavit evidence, I understand from his testimony at trial and a previous adjournment application that he has a pacemaker in his heart and that the pacemaker requires battery replacement procedures that may include a period of hospitalization. One of these procedures is expected to occur in the coming months. It is one of the concerns of C.R.F. for not serving a custodial sentence. [28] C.R.F. has no criminal record. [29] The psychological report provides the following statement related to C.R.F.'s desire to participate in future programs for rehabilitation: [C.R.F.] stated that his plans were simply to work and "and listen to my gut instinct ... and then stay away if something doesn't feel right." [C.R.F.] was unable to comment on future risky scenarios for sexual violence, noting simply that "there is no again." He did not have any concerns with being provided, or following, community supervision conditions ("I'll do community hours. I'll see my PO, I'll go on a curfew if I have to"). [30] In the PSR, he stated he would participate in sexual offence treatment if his attendance was mandated. [31] The psychological report assessed C.R.F. as having a low to moderate likelihood of future sexual violence. The report set out that C.R.F. does not indicate motivations for sexual violence: Overall, [C.R.F.'s] risk formulation indicates that he is someone with relatively few motivators for sexual violence (e.g., no indication of recent elevated sex drive, sexual deviance, or intense mating behaviour), but with significant disinhibitors and destabilizers of violence. [32] Mr. Gatner opines in the psychological report on C.R.F.'s intellectual functioning and its relationship to the offence, and his general risk factors for future offending: In formulating risk and management issues, [C.R.F.'s] intellectual functioning is a central consideration. That is, his thinking was likely destabilized during his offence (e.g. impaired judgment about the social situation and consent for sexual contact), which is associated with his intellectual deficits. His offending was further destabilized by possible ADHD symptoms which are associated with impulsive decision-making. [33] As I understand Mr. Gatner's opinion, it is that C.R.F.'s intellectual makeup is not prone to sexual violence, but he should avoid situations where ambiguity and disinhibiting himself, for example, where consent is required. Mr. Gatner gave this example of strip clubs, night clubs, or sex parties. To this extent, Mr. Gatner states that C.R.F.'s thinking was likely destabilized during the events leading to his sexual assault of J.C. and that they likely contributed to his "impulsive decision making" and "impaired judgment about the social situation and consent for sexual contact". [34] I pause to note that I find in this conclusion that Mr. Gatner is making a connection at a psychological basis between C.R.F.'s mental functioning as a possible contributing factor to C.R.F. misunderstanding the circumstances of the events that led him to offend. [35] In summary, C.R.F. is someone with no criminal record, a low chance of reoffending, and it appears he would benefit from additional programming, counselling, as well as restrictions to keep him away from situations where his intellectual functioning capacity issues, combined with other mental health illness issues, might lead him to offend. IV. Crown and Defence Positions A. Crown's Position [36] The Crown asks me to impose a two‑year custodial sentence upon C.R.F. The Crown acknowledges that, based on the circumstances of this case and the reports provided in sentencing, C.R.F. is unlikely to reoffend. However, the focus of the Crown's submission is that the sexual assault for which C.R.F. has been convicted is serious and the Court must communicate the message that sexual assault, especially of vulnerable people, where consent is not sought must be condemned. To this extent, the Crown's focus was on the sentencing objectives of denunciation and deterrence. [37] The Crown provided me with only one case, a case from the Court of King's Bench of Alberta; R. v. Pettitt, 2021 ABQB 773. [38] As I understand it, the Crown's purpose in providing me with this case is that it refers to the Supreme Court of Canada's decision in R. v. Friesen, 2020 SCC 9, which establishes that a sexual assault involving digital penetration or oral sex are not necessarily to be considered as non-serious or less serious than other forms of sexual assault involving penile penetration. [39] In Pettitt, the court cites para. 146 of Friesen that describes the potential error: [146] Fourth, it is an error to understand the degree of physical interference factor in terms of a type of hierarchy of physical acts. The type of physical act can be a relevant factor to determine the degree of physical interference. However, courts have at times spoken of the degree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale (see R. v. R.W.V., 2012 BCCA 290, 323 B.C.A.C. 285, at paras. 19 and 33). This is an error - there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference. As the Ontario Court of Appeal recognized in Stuckless (2019), physical acts such as digital penetration and fellatio can be just as serious a violation of the victim's bodily integrity as penile penetration (paras. 68-69 and 124-25). Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. [40] By way of brief summary of the facts of Pettitt, Mr. Pettitt was a tattoo artist. He was convicted of three counts of touching the vaginas of three different women while he was in the process of giving them tattoos. Mr. Pettitt had a previous criminal record. The trial in which he was convicted involved three different complainants who were all assaulted in a similar manner while Mr. Pettitt was giving the women tattoos. He was convicted of three assaults in the trial before the Queen's Bench. He was sentenced to a custodial sentence of 12 months for the first count, 30 months for the second count, and 36 months for the third count, the sentences to be served consecutively. B. Defence Position [41] I was provided no cases by counsel for C.R.F. C.R.F.'s counsel acknowledges the seriousness of the offence for which his client has been convicted. He did not attempt to minimize the seriousness of the offence. He contends, however, that given the totality of circumstances of the offence and the offender, a sentence of two years less a day served in the community, followed by a term of three years of probation, is appropriate. In other words, C.R.F. seeks a conditional sentence order ("CSO"). His counsel states that C.R.F. is profoundly sorry for the offence and that the strict conditions on the CSO, which would involve treatment and counselling, will assist C.R.F. in being rehabilitated. [42] He argues that the objectives of denunciation and deterrence can still be satisfied with a CSO with strict conditions. C.R.F.'s counsel points to the fact that C.R.F. is considered to have a low to moderate risk of reoffending in the psychological assessment. He also contends that C.R.F. will agree to not consume alcohol or illicit drugs, which may have been a contributing factor--an explanation, not an excuse--for the poor judgment that led to committing the offence. He also refers to C.R.F.'s willingness to participate in programming. V. Legal Framework and Principles [43] Section 718 of the Criminal Code provides that the fundamental purposes of sentencing is to protect society and contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful, and safe society by imposing just sanctions, with reference to six objectives. The objectives are: a) denunciation of unlawful conduct; b) deterring the offender and other persons from committing offences; c) separating offenders from society where necessary; d) assisting in rehabilitating offenders; e) providing reparations for harm done to victims and the community; and f) promoting a sense of responsibility in offenders, acknowledging the harm done to victims or to the community. [44] Sentencing is a balancing process--no one objective trumps the others; it is a sentencing judge's role to determine which objectives merit the greatest weight given in the circumstances of the offence and the offender: see R. v. Nasogaluak, 2010 SCC 6 at para. 43. [45] Ultimately, regardless of how the objectives are balanced, the resulting sentence must respect the principle of proportionality (i.e., the fundamental principle of sentencing, s. 718.1 of the Criminal Code). As set out by the Supreme Court in Nasogaluak at para. 40: [40] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender". Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality. Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider "all available sanctions other than imprisonment that are reasonable in the circumstances", with particular attention paid to the circumstances of aboriginal offenders. [46] An overarching fundamental principle in sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, the latter of which means the offender's moral blameworthiness: see R. v. Lacasse, 2015 SCC 64 at para. 12. However, the Supreme Court went on to explain that the process of imposing sentence is an inherently individualized process: [54] The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences is secondary to the fundamental principle of proportionality. This Court explained this as follows in C.A.M.: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [47] As I set out a moment ago, the Crown's position is focused primarily, if not exclusively, on the punitive aspects of sentencing: denunciation and deterrence. There is support for the importance of deterrence and denunciation being at the forefront in sexual assault cases. Our Court of Appeal in R. v. G.M., 2015 BCCA 165, held: [17] In serious sexual assault cases, the paramount sentencing objectives are denunciation and deterrence; it is not an error in principle to give them primacy over other sentencing principles such as rehabilitation: see e.g. R. v. Wells, 2000 SCC 10 at para. 44; R. v. B.S.B., 2010 BCCA 40 at para. 39; R. v. Thurairajah, 2008 ONCA 91 at para. 41. [18] Absent exceptional or unique circumstances, it is incumbent on the sentencing judge to give primacy to the deterrence and denunciation when imposing a sentence for a serious sexual assault: R. v. Garrett, 2014 ONCA 734. At para. 19 of Garrett, the Ontario Court of Appeal stressed that ignoring pleas by a complainant to stop "in itself" constituted "demeaning behaviour and contemptuous disregard for the personal integrity of the complainant" that engaged "the predominant sentencing principles of denunciation and deterrence." [48] However, as with all sentencing decisions, it cannot be forgotten that sentencing must be a holistic consideration of the unique circumstances of each case in order to craft a sentence that contributes to the respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions. [49] It is with these principles in mind that I turn to my analysis of the specific circumstances of the case to determine the appropriate sentence for C.R.F. VI. Discussion [50] As set out above, I was not provided with a range of sentences by either party. Crown proposes a federal sentence of two years. C.R.F. proposes a CSO of two years less a day followed by a term of probation. [51] As a starting point, I accept the submissions of Crown that the nature of the sexual offence was serious. C.R.F.'s actions seriously violated the personal integrity of J.C. He touched her vagina with his mouth and he inserted part of his finger into her vagina. The touching was of a sexual nature and unwanted. [52] As outlined above, J.C. has been profoundly impacted by the offence. Further, I cannot overstate the importance in our society of recognizing that sexual assault, which is inherently violent, especially against women who are disproportionately victimized by sexualized violence, must be condemned in our society in the strongest of terms. Imposing sentences proportionate with the gravity of these offences is one of the primary mechanisms of denouncing and deterring sexual assault in non‑consensual sexual violence. [53] In my view, it is important that my reasons for sentence are understood as recognizing the serious nature of this offence and its profound impact on the victim. A. Gravity of the Offence and Responsibility of the Offender [54] In considering an appropriate sentence, I must consider the gravity of the offence and the degree of the responsibility of the offender. I will first consider the gravity of this offence and then turn to the responsibility of the offender, which is often described as the moral blameworthiness of the offender. 1. The Gravity of the Offence [55] Section 718.1 provides that the "fundamental principle" of sentencing is proportionality. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As I have said repeatedly in these reasons, I accept the offence is a serious sexual assault. 2. Moral Blameworthiness of C.R.F. [56] I am also to consider the moral blameworthiness of C.R.F. [57] In terms of moral blameworthiness, our Court of Appeal in R. v. C.K., 2023 BCCA 468 at para. 71, set out a non-exhaustive list of factors to consider when assessing an offender's personal responsibility. The factors include the following: the level of planning and/or intentionality brought to the crime; the degree, nature and extent of the offender's personal participation in the offence; the means or method by which the crime was committed; the motive or reasons for the offender's participation; the offender's awareness of the legal and moral wrongfulness of their conduct; their awareness of the actual or reasonably foreseeable harms flowing from their conduct ([both] immediate and long-term); and their persistence in perpetrating the offence despite that awareness. [58] The circumstances of this offence are somewhat unusual in that C.R.F. walked out of the bathroom to see what he perceived as his wife, J.C., and another female in sexual activity. In my view, he acted impulsively. C.R.F. stopped only when he was told--which is a factor in my view that cuts both ways in terms of his blameworthiness, in that it demonstrates that he did not understand the wrongness of his actions until he was told to stop. This demonstrates a profound misunderstanding of the fundamental importance of consent in sexual interactions, and also that his actions could have escalated, but for the interventions of others. [59] However, as set out above, due to his psychological issues, there is some evidence that C.R.F. may have had more difficulty in his awareness of the legal and moral wrongness of his conduct than would others. I find this attenuates his blameworthiness to some minor extent. [60] I am aware that the court must engage in a close examination of moral blameworthiness, consistent with the harm‑focused framework established by the Supreme Court in Friesen. In other words, a sentencing judge must ensure that close consideration and proper effect be given to the significant harm caused to the victim, and not pay undue attention to the offender's personal mitigating circumstances: see also R. v. Harroff, 2024 BCSC 318 at para. 48. B. Other Sentencing Principles in Imposing Sentence Pursuant to s. 718.2 of the Code [61] Section 718.2 of the Code provides that I must take into account other principles when imposing sentence. [62] Pursuant to s. 718.2(a) of the Criminal Code, I am required to take into account the relevant aggravating and mitigating factors. To not do so is an error of law: see Lacasse at 78. I am also cognizant that I must attempt to avoid taking a piecemeal approach to aggravating and mitigating factors which should be considered as part of a determination of an appropriate sentence, rather than independently: see R. v. Potts, 2011 BCCA 9 at paras. 75-83. [63] Pursuant to s. 724(3)(e) of the Criminal Code, the Crown must prove facts that constitute an aggravating factor beyond a reasonable doubt. [64] Having regard for the factors set out in s. 718.2(a), I accept that, having consideration of the age and stage of J.C., the impact on her life is an aggravating factor. While she was over the age of 18, she was only 24 and much younger than C.R.F. In respect to vulnerabilities, I find that an aggravating factor is that J.C. was heavily intoxicated during the assault. I also find as a fact in my conviction that C.R.F. was aware that J.C. was intoxicated at the time of the assault. [65] I pause to note that in terms of the use and abuse of alcohol, C.R.F. was also intoxicated. I accept that his intoxication cannot be a mitigating factor. It cannot be an excuse for his behaviour, but it provides some context that is relevant to considering rehabilitation and the potential for reoffending. C. Mitigating Factors [66] In respect to mitigating factors, few were put before me by counsel for consideration. However, in the PSR and psychological report, I have found that there exist the following mitigating factors in this matter: 1. C.R.F. has indicated a willingness to participate in any programs available to assist him in understanding his conduct to rehabilitate himself and reduce risks of reoffending, including not consuming alcohol; 2. C.R.F. has no criminal record; 3. C.R.F. has been determined by a professional assessment to present a low to moderate risk to reoffend; and 4. C.R.F. has expressed remorse for his actions. [67] In respect of remorse as a mitigating factor, I acknowledge the comments of Justice Taylor in R. v. Anderson (1992), 74 C.C.C. (3d) 523, 1992 CanLII 6002 (B.C.C.A.), at 535-536 in that it must be remorse of a concrete nature to show a willingness to change: The factor of "remorse" is often important. In so far as it might be suggested that the court should regard those who come before it in a submissive or contrite manner as deserving of more lenient treatment than those who accept their predicament with whatever fortitude they are able to summon, there would be little in this factor which could assist the sentencing judge. But to the extent that an accused person is able to demonstrate that he or she has, since the commission of a crime, come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending, the existence of remorse in this sense obviously has much importance. D. Parity of Sentence [68] Section 718.2(b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Again, I was not provided with a range of sentences by either counsel. However, in G.M., Justice Goepel held that generally the range of sentence for sexual assault involving intercourse is two to six years: [22] The range of sentences for sexual assault involving intercourse is two to six years: R. v. B.S.B., 2010 BCCA 40 at para. 6 and R. v. Pouce Coupe, 2014 BCCA 255 at para. 31. While the range of sentences is an important consideration, ranges constitute guidelines rather than hard and fast rules. [69] Not inconsistent with Justice Goepel's finding in G.M. that there are no hard and fast rules in sentencing ranges for sexual assault is Madam Justice Duncan's conclusion in R. v. Law, 2018 BCSC 1683 at para. 98, that "sexual assault cases that do not include intercourse may attract sentences below two years". In citing these cases, I am acknowledge the guidance provided in Friesen that a court must be careful not to develop a hierarchy of sexual assault, thus minimizing the seriousness of non‑penile penetration. That said, there are reasons for having higher ranges associated with penile penetration, such as the risk of disease and pregnancy to which the offender is subjecting the victim. [70] Other cases assist somewhat in determining the appropriate range of sentence for cases of similar circumstances to the case before me. [71] In R. v. Rosenthal, 2015 YKCA 1, the Court of Appeal allowed the Crown's appeal against a suspended sentence in a case where the accused had digitally penetrated a sleeping victim. The court imposed a sentence of 14 months imprisonment. The facts in that case were summarized at para. 2 of the judgment: [2] The respondent and the victim were socializing and consuming alcohol with others at a home where the respondent often stayed. The victim asked to stay over and share the respondent's bed rather than go home late at night. The respondent agreed. The victim later awoke to find the respondent's finger in her vagina. She moved over and he removed his hand. She told him that she was not interested in having sex and went home. [72] I note that in Rosenthal, as is the case in a number of cases involving digital penetration, the victim was completely unconscious during the commencement of the sexual assault and thus completely vulnerable. In my view, this adds an element of blameworthiness and moral reprehensibility to those offences where an offender sexually takes advantage of an unconscious victim. Those facts are not present in the case at bar. [73] In R. v. Berry, 2015 BCCA 210, the offender was sentenced to two years for a sexual assault of his common law partner while she was asleep by digitally penetrating her. The offender also received a consecutive nine‑month sentence for voyeurism for filming his actions. At para. 28, the court distinguished the case as more serious than the 14‑month sentence in Rosenthal "where the victim, in a lone incident, woke up to discover the offender had digitally penetrated her, where she removed her hand and left the room." At para. 29, the court noted that the trial judge had found the conduct in the case at hand "to be highly invasive and prolonged". [74] In R. v. Maslehati, 2024 BCSC 121, the circumstances of the offence were that the assault consisted of the offender touching and licking the victim. The offender and victim were friends for 20 years and on the night in question had used marihuana and alcohol together. The offender had serious heart issues, outlined at paras. 21 and 22. [75] The offender was sentenced to an 18‑month conditional sentence order to be served in the community. The court discusses the legislative changes regarding the availability of a CSO on an indictment for sexual assault and the case law at paras. 29 to 33. [76] In my view, the cases above illustrate that there is a wide range on sentences for sexual assault that involve digital penetration and touching of a sexual nature with a mouth. I find the case provided by the Crown referenced above, Pettitt, relates to circumstances that are not in line with the circumstances of this case. Mr. Pettitt had a previous record. He assaulted three different women at different times. He was in some position of trust because he was providing the women with tattoos as a professional at the time of the offences. [77] Further, and importantly, while courts should pay heed to the general ranges of sentences for particular offences to encourage greater consistency (in accordance with the parity principle, s. 718.2(b) of the Criminal Code), regard must be had to all the circumstances of the offence and the offender and the needs of the community in which the offence occurred: Nasogaluak at paras. 43-44. E. Appropriate Length of Custody Sentence in this Case [78] Given the foregoing, having considered the aggravating and mitigating factors, the seriousness of the offence, and the sentences imposed by the court in circumstances somewhat similar to the circumstances of this case, as well as the blameworthiness of C.R.F., I conclude that if I were to impose a custodial sentence, it would be at the lower to mid‑range of between nine to 12 months. [79] Given the custodial sentence I would impose falls below two years, I must consider whether a non‑custodial sentence would satisfy objectives of sentencing including denunciation and deterrence. Further, I acknowledge that s. 718.2(d) and 718.2(e) of the Criminal Code also require me to apply the principles of restraint and to consider, where reasonable, sanctions short of imprisonment. F. Is a Conditional Sentence Order Appropriate? [80] Having found that an appropriate custodial sentence, given the circumstances of this offence and the offender, falls below two years, it is open to me to impose a CSO in which C.R.F. would serve his sentence in the community under a form of house arrest as an alternative to a term of imprisonment if the requirements of s. 742.1 of the Code are met. Indeed, if a sentence falls below two years, the court must determine whether a conditional sentence is appropriate by considering and weighing the ability of a conditional sentence to meet the deterrence and denunciation objectives and other relevant sentencing objectives, including restraint and rehabilitation. [81] As articulated by the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, where a number of sentencing objectives are relevant to a case and some favour incarceration, while others favour a conditional sentence, a court should weigh the factors. The Court provides guidance on conditional sentences at paras. 114 to 116: 114 Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. Conversely, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served. 115 Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender. Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. I repeat that each case must be considered individually. 116 Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence, whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives in fashioning a fit sentence. As La Forest J. stated in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 329, "[i]n a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender". There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations pursuant to s. 718.3. [82] As I have said many times in this judgment, I acknowledge the serious nature of the offence and the profound impact it has had on J.C. I acknowledge that denunciation and deterrence are important principles of primary importance in cases of sexual assault. However, the Supreme Court is clear that sentences imposed to be served in a community are indeed punitive sentences and can and should contain onerous requirements such that they satisfy the objectives of deterrence and denunciation. In my view, a very restrictive and lengthy CSO is appropriate in this case. [83] My conclusion that a CSO of a greater length than the custodial sentence I would have imposed finds support in the Supreme Court in Proulx. The court summarizes the principle as follows at para. 127: As a corollary of the purposive interpretation of s. 742.1(a), a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. [84] To reiterate, the reasons I find that support imposing that C.R.F.'s sentence will be served in the community include the following: a) this is C.R.F.'s first offence; b) I accept he is genuinely remorseful and poses a low risk to reoffend; c) I accept that his mental health and intellectual deficits were directly linked by the psychological report and the psychologist to C.R.F. incorrectly interpreting his environment during the offence, thus somewhat attenuating his blameworthiness; d) C.R.F. has serious health issues, including heart issues, which would be aggravated by incarceration at an institution; e) C.R.F. is willing to take concrete steps toward rehabilitation, including taking counselling, programming, and abstaining from drugs and alcohol; and f) C.R.F. is of limited means, receiving disability insurance benefits. However, he has also built a business. If incarcerated, I am concerned that he will become unemployed or unemployable after returning to the community from prison. [85] I find that a conditional sentence of a significantly lengthier period than the appropriate length of a custodial sentence better achieves the balance of the six objectives of sentencing and, as such, furthers respect for the law and maintenance of a just, peaceful, and safe society by imposing a just sanction. [86] Also, and important to my conclusion, is that in the PSR, it is recommended that C.R.F. participate in the Forensic Sexual Offence Program (the "FSOP"). This can be provided during a custodial sentence at Ford Mountain Correctional Centre. The FSOP can also be provided on an outpatient basis to individuals convicted of sexually motivated offences subject to community supervision orders. This is the same program offered in provincial custody. While an individual convicted of a sexually motivated offence is sentenced to a community supervision order with a counselling condition that satisfies criteria established by the FPS, probation officers will refer the individual to participation in the FSOP. Referred individuals are then assessed by an FPS clinician who determines their acceptance at the FSOP. [87] However, and this is important to my finding, whether in custody or in the community, as set out in the PSR, to complete the FSOP, a period of 12 months to 18 months is required to allow sufficient time to complete the program. [88] An additional concern I have that I find supports a CSO in sentencing C.R.F. is that if I were to sentence him to a custodial sentence of fewer than 12 months, which is the range of custodial sentence I have found appropriate in this case, it would appear it would limit his ability to participate in the programming. This result, in my view, would fail an important objective of sentencing, which is C.R.F.'s rehabilitation. [89] I accept the conclusions of the psychological report and PSR that C.R.F. has a low risk of committing another offence of this nature. Indeed, the laying of charges and the criminal process itself have had a significant impact on him, especially so given his various health considerations and conditions. He is now a convicted sex offender, the social impact of which is substantial. [90] I want to be clear that a CSO is a term of imprisonment which significantly restricts an offender's liberty, often for periods longer than would a sentence of incarceration. As established by the Supreme Court in Proulx at para. 127, restrictive conditions on conditional sentence orders, such as house arrest, should be the norm. Although served in the community, a CSO is both punitive and denunciatory. To accomplish these sentencing objectives, I will impose very restrictive, onerous, and lengthy conditions that will impose significant restrictions on C.R.F.'s liberty. [91] Given C.R.F.'s personal circumstances, I do not conclude that incarceration in a penitentiary is necessary to achieve the objectives of sentencing. Considering the overall circumstances, I find a CSO with appropriately punitive conditions can meet the principles of denunciation and deterrence in the case before me. VII. Disposition [92] C.R.F., I ask you to please stand. [93] On the count of sexual assault contrary to s. 271 of the Criminal Code, I sentence you to a sentence of 23 months to be served in the community with the following conditions: 1. You must keep the peace and be of good behaviour; 2. You must appear before the court when required to do so by the court; 3. You must report in person to a conditional sentence supervisor in Prince George by 3:00 p.m., April 3, 2024, and after, you must report as directed by your supervisor; 4. You must notify the court or your conditional sentence supervisor in advance if you change your name, address, or phone number, and promptly notify the court or supervisor of any change of employment or occupation; 5. You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province; 6. You must have no contact or communication, directly or indirectly, with J.C.; 7. You must not go to any place where J.C., lives, works, attends school, worships, or happens to be. If you see her, you must leave her presence immediately without any words or gestures; 8. You must not possess or consume alcohol, illegal drugs, intoxicating substances, marihuana, prescription medication except in accordance with a medical prescription; 9. You must live at your current address and provide your conditional sentence supervisor with your phone number; 10. For the first 13 months of your conditional sentence order, you must obey house arrest by being inside your residence, which includes your workshed, every day, except the hours of 2:00 p.m. to 3:00 p.m., or with the prior written consent of your conditional sentence supervisor, which includes prearranged medical appointments, authorized counselling, and authorized programming preapproved by your conditional sentence supervisor, for work appointments and travelling to and from work appointments. All work appointments outside of your residence must be preapproved by your conditional sentence supervisor; 11. For the remaining 10 months of the CSO, you must obey a curfew by being inside your residence between 7:00 p.m. and 7:00 a.m. every day, unless you have the prior written permission of your supervisor for the conditions set out in the terms governing the first 13 months of the CSO; 12. You must present yourself immediately at the door of your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest or curfew hours; 13. You must carry the permission with you when you are outside your residence; 14. You must not own, possess, or carry a weapon as defined in the Criminal Code; 15. You may also be away from your residence during the house arrest or curfew while at, or going directly to or returning directly from, a healthcare facility because of a medical emergency. If asked, you must provide your conditional sentence supervisor with proof of your attendance at the facility; and 16. You must attend, participate in, and complete any intake, assessment, program, or treatment as directed by your conditional sentence supervisor. This may include programming or treatment for sexual offenders, including the Community Corrections Forensic Sexual Offence Program (FSOP) and the Maintenance After Treatment (MAT) program. [94] You may be seated, C.R.F. VIII. Probation Conditions [95] I will now address the probation orders. The purpose of probation is to give offenders an opportunity to rehabilitate themselves, facilitate their reintegration into society and protect society, not to be an additional punishment: see R. v. Mathieu, 2008 SCC 21 at para. 20. [96] I am satisfied that a probation order is required for the purpose of providing C.R.F. with a further opportunity to rehabilitate himself and to protect J.C. [97] Accordingly, I will order, pursuant to s. 731 of the Criminal Code, that for a period of three years after the end of your sentence: 1. You shall report to a probation officer within 48 hours after the completion of this sentence, but you are not required to report further to the probation officer, except to notify the probation officer in advance of any change of name or address, or notify of a change in employment or occupation; 2. You shall have no contact or communication, directly or indirectly, with J.C.; 3. You must not go to any place where J.C. lives, works, attends school, worships, or happens to be. If you see her, you must leave her presence immediately without any words or gestures; 4. You shall abstain from owning, possessing, or carrying a weapon as defined in the Criminal Code; and 5. You must continue to participate in programming regarding sexual assault as and when directed by your probation supervisor. [98] Crown has asked for the following ancillary orders and C.R.F. is not opposed. As such, I will grant the following ancillary orders: 1. an order that C.R.F. is to attend the nearest RCMP detachment to provide a DNA sample within 24 hours of this order or as otherwise directed by his conditional sentence supervisor; 2. a 10‑year firearms prohibition pursuant to s. 109 of the Criminal Code; 3. an order to comply with the Sexual Offender Information Registration Act for a period of 20 years; and 4. a victim surcharge, which I order will be payable by C.R.F. within 30 days of the date of this order. IX. Conclusion [99] It is important for me to communicate that in setting this sentence, I am not diminishing the gravity of the crime of which C.R.F. has been convicted. I accept it was profoundly traumatic for J.C. and continues to be so. [100] C.R.F., you have heard my reasons for sentence today. As you have heard me say, it is my belief that you have understood the harm and damage that your actions have had and the serious consequences it has had on a young woman's life. It has also had consequences on your life and no doubt to those around you. [101] I sincerely hope you take all of the opportunities available to you to commit to the counselling I am ordering, and I sincerely hope this is the last interaction you have with the criminal justice system. [102] THE ACCUSED: Oh yes. "Gibb‑Carsley J."