R. v. B-B.

2025 BCSC 232 R. v. B-B.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. B-B., 2025 BCSC 232 Date: 20250207 Docket: 99738 Registry: Kelowna Rex v. C.J.E.B-B. Restriction on publication: Pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46 Before: The Honourable Justice Shergill Oral Reasons for Sentence Counsel for Crown: J. Schroeder Counsel for Defence: J.R. Fernandes Place and Dates of Hearing: Kelowna, B.C. February 5-6, 2025 Place and Date of Judgment: Kelowna, B.C. February 7, 2025 Table of Contents I. Overview.. 3 II. Sentencing Principles. 3 III. Circumstances of the Offence. 9 IV. Circumstances of the Offender.. 10 A. Gladue Report 12 B. Pre-Sentence Report 14 C. Psychological and Risk Assessment Report 16 D. Expert Evidence. 17 V. Analysis. 18 A. Aggravating Factors. 18 B. Mitigating Factors. 22 C. Other Considerations. 24 D. Sentencing Parity. 25 VI. Conclusion.. 27 VII. Sentence. 30 I. Overview [1] THE COURT: These are my reasons for sentence. They have been edited for publication. [2] These proceedings are subject to a publication ban pursuant to s. 486.4(1) of the Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code], such that no information that could identify the victim or a witness shall be published in any document or broadcast or transmitted in any way. Protection of the identity of the victim in this case necessitates anonymizing her name, the names of witnesses,

and the name of the offender. I intend no disrespect to the victim or to the offender, by referring to them by their initials. I will refer to the offender as "C.B-B." or "Mr. B-B.", the victim as "J.", and the victim's mother as "T.M.". [3] C.B-B. has plead guilty to touching his daughter for a sexual purpose, contrary to s. 151 of the Criminal Code. It is my task to impose an appropriate sentence, having regard to the sentencing principles applicable to crimes of this nature. [4] The Crown seeks a term of imprisonment of 8 years plus ancillary orders. The defence seeks a prison term of 3 years plus ancillary orders. The terms of the ancillary orders are not in dispute. Both the defence and the Crown agree that the sentencing range for offences of this type must be considered in light of the SCC's decision in R. v. Friesen, 2020 SCC 9. [5] Determining an appropriate sentence, therefore, turns not only on what emphasis I give to the aggravating and mitigating factors that are specific to this case, but also the need to meet the objective of sentencing for sexual violence against children that gives effect to its "profound wrongfulness and harmfulness". II. Sentencing Principles [6] Pursuant to s. 718 of the Criminal Code, the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society

by imposing just sanctions which have one or more of the following objectives: denunciation; deterrence; separation of offenders from society; rehabilitation; reparation; and the promotion of a sense of responsibility and acknowledgement of the harm done. [7] No matter what objectives a sanction is intended to achieve, to be just, the sentence imposed must comply with the fundamental principle of sentencing, namely proportionality. Section 718.1 stipulates that a just sentence is one that is proportionate to the gravity of the offence and the degree of responsibility of the offender. It requires the court to consider the offender's degree of moral culpability, measured against the seriousness of the crime itself, and the consequential harm. [8] Section 718.2 of the Criminal Code sets out additional principles which must be considered, such as: the aggravating or mitigating circumstances relating to the offence or the offender; the consistency of sentencing in sentences imposed on similar offenders for similar offences committed in similar circumstances; where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and an offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances. This provision also requires that all available sanctions, other than imprisonment, that are reasonable in the

circumstances and consistent with the harm done to the victims or the community should be considered for all offenders, with particular attention to the circumstances of Indigenous offenders. [9] Section 718.01 is a special provision that applies when a child under the age of 18 years is abused. In such a case, that section provides that the primary considerations for the court are denunciation and deterrence. [10] In recent years, there has been a recognition that sentencing for child sexual offences has historically been too low. The seminal authority on this issue is the Supreme Court of Canada's decision in Friesen. [11] In R. v. G.J.M., 2024 BCCA 82 at para. 1, the Court of Appeal summarized the significance of Friesen as follows: [1] In R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada established an analytical approach to sentencing for sexual violence against children that gives effect to its "profound wrongfulness and harmfulness": at para.

1. The Court sent a clear message: sentencing judges must do more than simply state that sexual offences against children are serious; they must impose sentences that are commensurate with their gravity: Friesen at para.

76. This approach responds to society's deepened understanding of the far-reaching damage caused by sexual violence to children, and places them, and the harm that they suffer, at the centre of the discussion. Its application mandates increased sentences that reflect this modern understanding and Parliament's choice to increase the sentences imposed for such crimes: R. v. Bertrand Marchand, 2023 SCC 26 at paras. 31-32. [12] In its resetting of the law, the Court in Friesen made the following pronouncements about the seriousness of child sex offences: a) The protection of children is one of the essential and perennial values of Canadian society (para. 42). b) Courts must accurately understand the harm of child sex offences to properly sentence offenders (para. 50). c) The law is shifting from focusing on sexual propriety to interfering with sexual integrity, which "enables greater emphasis on violations of trust, humiliation, objectification, exploitation, shame, and loss of self-esteem rather than simply, or only, on deprivations of honour, chastity, or bodily integrity" (para. 55). d) Courts should focus attention on emotional and psychological harm instead of just physical harm (para. 56). e) Sexual violence causes "ripple effect" harm to children by damaging their relationships with families, caregivers, and others with whom they are in a trust relationship, making them

reluctant to participate fully in their communities (paras. 60-61). f) Because of these ripple effects, the family and community of victims become secondary victims who suffer profound harm from the offence (para. 63). g) Children are most vulnerable at home with those they trust (para. 66). h) Sexual violence against children disproportionately affects girls and thus perpetuates disadvantage for girls (para. 68). [13] The Court in Friesen provided direction to sentencing judges on how to impose sentences for sexual crimes against children that fully reflect the harm done as well as the wrongfulness of the conduct. At para. 76, the SCC stated is thus: [76] Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case. [14] To ensure that sentences for sexual offences against children correspond to Parliament's initiatives and the contemporary understanding of the profound harm that sexual violence causes to children, the Court in Friesen at para. 107 provided guidance on three specific points: 1) An upward departure from prior precedents and sentencing ranges should occur for sexual offences against children because Parliament increased the maximum sentences for these offences and because society's understanding of the gravity and harmfulness of these offences has deepened.

2) Sexual offences against children should generally be punished more severely than sexual offences against adults.

3) Treating the offence of sexual interference with a child as less serious than that of sexual assault of a person under the age of 16 is an error of law. [15] The Court also provided guidance at paras. 88 to 90, on how to assess the moral blameworthiness of the offender, when determining a just and appropriate sentence for offences of a sexual nature. The Court noted: 1) Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child.

2) All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender -- the offender is treating the victim as an object and disregarding the victim's human dignity.

3) The fact that the victim is a child increases the offender's degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable [16] The Court in Friesen provides the following instruction on how sentences for child sex offences must increase: [114] That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the "abstract case of the worst crime committed in the worst circumstances" (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20). [17] The Court went on at paras. 121 to 154, to provide the following non-exhaustive list of significant factors to determine a fit sentence for sexual offences against children: 1) The higher the offender's risk to reoffend, the more the court needs to emphasize the sentencing objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm (at para. 123).

2) An offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child (at paras. 126-129).

3) Sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender's increased degree of responsibility (at para. 131).

4) The age of the victim is also a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence. The moral blameworthiness of the offender is enhanced in such cases (at para. 135).

5) Defining a sentencing range based on the specific type of sexual activity at issue poses several dangers. In particular, courts must be careful to avoid the following errors: attributing intrinsic significance to the occurrence or non-occurrence of sexual acts based on traditional notions of sexual propriety; assuming that there is correlation between the type of physical act and the harm to the child; failing to recognize the wrongfulness of sexual violence in cases where the degree of physical interference is less pronounced; and understanding the degree of physical interference factor in terms of a type of hierarchy of physical acts (at para. 145, 146).

6) A child's participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. However, where the participation was due to grooming, that may be an aggravating factor (at para. 153). [18] I turn now to the circumstances of the offence. III. Circumstances of the Offence [19] The Crown and the Defence have agreed to the following relevant facts which were entered into evidence through an Agreed Statement of Facts filed pursuant to s. 655 of the Criminal Code. Introduction 1. [J.] is a 7 year-old girl who lives with her two parents, [T.M.] and the Defendant, in Kelowna, B.C.

2. The Defendant is 57 years old. The Offence 3. From approximately January 1, 2021, to May 23, 2023, the Defendant engaged in the sexual abuse of his daughter, [J.].

4. The abuse would take place when the Defendant would put [J.] to bed on the weekends. On a regular basis, the Defendant would touch and rub [J.]'s vagina with his hands. She described that he would put his finger on top of her vagina and make circles with it.

5. On at least one occasion, the Defendant touched [J.]'s vagina with his penis. On that occasion, [J.] pretended she was sleeping. Instead of touching her vagina with his hand, the Defendant touched [J.]'s vagina with his penis, making circles over her vagina.

6. On at least one occasion, [J.] touched the Defendant's penis with her hand.

7. While it is not certain exactly which nights the Defendant carried out the abuse, [J.] used strong language to describe the frequency, saying, "He does this every night" that he put her to bed.

8. This abuse would take place while the [J.]'s mother was in another room in the house.

9. The Defendant told [J.] not to tell anyone about the abuse. [J.] described that he said it was "me and daddy's secret." The disclosure and aftermath 10. [J.] disclosed the abuse to staff at an after school care program on May 23, 2023. The report was immediately passed on to the Ministry of Children and Family Development ("MCFD").

11. On May 24, 2023, T.M. was advised of the allegations and agreed to have the Defendant live somewhere else while the allegations were investigated.

12. On May 25, 2023, the Defendant was at Kelowna General Hospital due having suicidal thoughts.

13. The Defendant was arrested at the hospital that day and was observed to be "clearly distraught." He was cooperative with police.

14. The Defendant was cooperative with police upon arrest.

15. While in the hospital, the Defendant provided a confession to his psychiatrist admitting that he had been sexually abusing [J.]. [20] I turn now to the circumstances of Mr. B-B. IV. Circumstances of the Offender [21] The following is a summary of Mr. B-B.'s personal circumstances which are relevant to this proceeding. It is based on evidence submitted in this sentencing hearing, including information contained in a Gladue Report, pre-sentence report ("PSR"), psychological and risk assessment report ("PRA") report, and expert report, as well as submissions from counsel. [22] In reviewing these materials, I note that there are some inconsistencies in the personal history provided by Mr. B-B. These relate primarily to experiences of childhood abuse. In particular, Mr. B-B. is reported in the PSR as denying experiencing any childhood abuse, whereas both the Gladue report and expert opinion report from his clinical counsellor indicates that he suffered physical and psychological abuse. The Gladue report (and PRA) also refer to sexual abuse by an older male when Mr. B-B. was a teenager, which is not reported in the PSR. [23] Where the inconsistencies are material, I have relied on the Gladue report or the PRA as opposed to the PSR, as I find the Gladue report to be more thorough and accurate with respect to Mr. B-B.'s personal and family history, and the PRA more accurate and

thorough with respect to his psychological history. [24] Mr. B-B. is 60 years old. He was born in Ontario. [25] Mr. B-B. had a difficult and traumatic childhood. Both his parents suffered from substance dependency. In addition, Mr. B-B.'s mother had longstanding mental health issues, and was institutionalized for approximately one year for mental health reasons. [26] His parents separated when he was very young. Following his parents' separation, Mr. B-B. and his brother were sent to live with his paternal grandparents, while his sister remained with his mother. He had sporadic contact with his sister and mother following this. [27] While Mr. B-B. had a very good relationship with his grandmother, his step-grandfather was an alcoholic and verbally and physically abusive towards he and his brother. When he was 8, Mr. B-B. and his brother moved to his father's home. His father did not work, and smoked marijuana regularly. It was Mr. B-B.'s father that introduced Mr. B-B. to marijuana. [28] Mr. B-B. stayed with his father for two years before returning to live with his grandparents. Tragically, only a few years later, Mr. B-B.'s grandmother passed away from cancer. Mr. B-B. was only 14 years old at this time. As his grandmother was like a mother to him, Mr. B-B. suffered profound grief over her death. This was followed by further instability in his living circumstances. [29] After

his grandmother died, Mr. B-B. moved back in with his father. His father was still unemployed and still smoking marijuana habitually. Mr. B-B. began drinking alcohol and using marijuana openly in front of him, and in short order, he was also introduced to and began experimenting with other drugs. [30] At the age of 14, Mr. B-B. was molested by an older man. This had a long-lasting impact on him and caused confusion regarding his sexual identity, as well as emotional trauma. [31] Mr. B-B. dropped out of school at the age of 16. Not long after, his father moved to BC, and Mr. B-B. was forced to move in with his mother and her boyfriend. While there he was exposed to both his mothers and her boyfriend's alcoholism, as well as observing and trying to stop, physical and verbal abuse between them. [32] Mr. B-B. eventually returned to complete his high school education. He was not able to complete a college program to become a mechanic because of financial difficulties. Over the years, he has worked at various jobs in the labour force. He suffered some health issues and went on long-term disability and social assistance. He currently supplements his income by driving a tour bus and delivering food. [33] In terms of his physical and psychological health, Mr. B-B. has fibromyalgia, and has intermittent pain in his neck and back from previous injuries. He has struggled with depression,

and suffered from suicidal thoughts. He spent approximately one week in the hospital after a near suicide attempt to help treat his mental health concerns. He recently started regular therapy with a clinical counsellor Mr. Guerra Mella, who focuses on healing through Indigenous practices. [34] Over the decades Mr. B-B. has struggled with dependency to alcohol, marijuana, and cocaine. However, on his own volition, he was able to discontinue using the various substances, and appears to have been sober since approximately May 2023. [35] Mr. B-B. was married twice. His first marriage lasted about 14 years, and produced a son who was born when Mr. B-B. was just 19 years old. His second marriage lasted for about two years, and did not produce any children. [36] Mr. B-B. met T.M. in 2013. Their daughter, J., who is the victim of this offence, was born in 2015. The family lived together until the charges. Ms. T.M. remains in contact with Mr. B-B. though their relationship is strained because of his sexual abuse of J. A. Gladue Report [37] A very thorough and detailed Gladue report was provided to the Court. The Gladue report provides information about Mr. B-B.'s Indigenous heritage and his connection to the community. [38] Mr. B-B. identifies as Métis, and has ties to the Métis people on his mother's side. Both his mother's sets of grandparents were Indigenous. The Gladue Report notes

that Mr. B-B.'s mother was raised by her paternal grandparents because of abuse issues she was experiencing at home. Mr. B-B.'s great grandmother reportedly rarely spoke to his mother about her upbringing. [39] Mr. B-B. has been quite disconnected from his Métis culture and heritage. He was not raised in the primary care of his mother and was disconnected from his maternal grandparents and extended family. He does not speak the traditional languages of the Métis people and does not practice the Métis customs or traditions. [40] In R. v. Kehoe, 2023 BCCA 2 at para. 55, the Court acknowledged that disconnection from culture and community, is a "consequence of Canada's colonial history and assimilationist policies": at quotes in the Gladue report at p.

14. The BC Court of Appeal went on to note the devastating and long-lasting negative impact experienced by many Indigenous peoples because of their disconnection from their "ancestral communities, cultures, and associated positive social structures": at para. 55. [41] In R. v. Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679, the Court set out the systemic and background factors which have affected Indigenous people in Canada: [67] The background factors, which figure prominently in the causation of crime by aboriginal offenders, are by now well known. Years of dislocation and economic development have translated, for many aboriginal people, into low income, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. These and other factors contribute to a higher incidence of crime and incarceration. [42] The Gladue report identified nine Gladue factors as being present in Mr. B-B.'s case. These are: 1. family and community fragmentation; 2. loss of family roles and familial composition; 3. normalization of violence and abuse; 4. personal experiences of abuse; 5. family substance abuse issues; 6. personal substance abuse issues; 7. mental health concerns; 8. high rates of unemployment; and 9. loss of language and culture. [43] I note that this is in contrast to the PSR which states that "intergenerational trauma or other Gladue factors do not appear to have played a role in [Mr. B-B.'s] upbringing": PST at p.

6. On this point, I prefer the Gladue report, as its author is specially trained to recognize the presence of Gladue factors and their impact on an Indigenous person. [44] In the same vein, I reject the concerns raised by Crown Counsel regarding inconsistencies in Mr. B-B.'s reporting of his Indigenous heritage and connection to the Métis community. In my view, these inconsistencies are likely due to Mr. B-B.'s disconnect from his community and his having limited information on his Métis background and history, as noted in the Gladue report. [45] The Gladue report confirms that Mr. B-B. would like to continue to address his mental health issues, maintain his sobriety, and connect with his Métis background. He currently receives counselling from Roy Guerra Mella, who works with the Kelowna Métis Association, a local representative of the Thompson Okanagan for the Métis Nation of British Columbia. B. Pre-Sentence Report [46] The PSR notes that Mr. B-B. has no prior criminal record. In addition, he has not had any breaches or violations of his bail conditions for the past 1.5 years since his arrest and release on bail. [47] The following points are noted in the PSR: · Mr. B-B. expresses regret and remorse that the impact his actions have had on his daughter. · He states that using cannabis daily at the time impaired his judgement. Despite the abuse continuing for a period of over

two years, he claims that at no time did he sexually abuse his daughter when he was sober. · His risk in the community appears to be directly related to his lack of moral judgement and conduct as an adult and as the father who was in a position of trust and care over his seven year-old daughter. · "His lack of a moral imperative, his inability to maintain ethical boundaries with his daughter, to ensure the safety and security, indicates he cared little for societal norms or the legality of his actions" (at p. 7). · He will benefit from completing the sexual offences prevention programmes and ongoing support. He may also benefit from general counselling on an ongoing basis. · He should not be allowed to be in a position of trust with any underage person. [48] The PSR notes the availability of programming for sex offenders in federal institutions. If he is found suitable for the sex offender stream of the integrated correctional program model, he would receive approximately 50 hours of counselling sessions if he is rated at moderate risk to reoffend; and 100 sessions if deemed to be at high risk. [49] According to the probation officer who authored the PSR, follow-up maintenance programs are offered both in custody and in the community once the sex offender program is completed. C. Psychological and Risk Assessment Report [50] Dr. O'Donnell, who prepared the PRA, states that Mr.

B-B. likely meets the criteria for a major depressive disorder, recurrent, currently in partial remission with treatment. He also diagnoses him with pedophilic disorder under the DSM-5 guidelines. [51] According to Dr. O'Donnell, if no special management plans are implemented, the likelihood that Mr. B-B. "will commit further sexual violence in the form of assaulting children is estimated to be moderate". However, the likelihood that he will commit other forms of sexual violence is estimated to be low: at p.

10. Defence counsel agrees that the reference to low likelihood to reoffend is with respect to adults, rather than children, for which as I have said, Mr. B-B. poses a moderate risk. [52] According to Dr O'Donnell, the factors that appear to be most relevant to Mr. B-B.'s decision to engage in sexual offending include "problems resulting from child abuse, pedophilic sexual interest, problems with substance use, mental health issues [i.e. depression], and poor coping abilities". [53] Defence counsel does not challenge the conclusions arrived at by Dr. O'Donnell, or his use of, or reliance on, the Risk for Sexual Violence Protocol, Version 2 ("RSVP-V2"). However, Defence Counsel wishes to emphasize that a number of factors which are relevant in determining the likelihood to re-offend, are noticeably absent in this case. For example, the testing indicates that Mr. B-B. only has two of the five relevant factors relating to nature of sexual violence, and under perpetrator characteristics, there were no problems with minimization/denial of sexual violence, attitudes that support or condone sexual violence, or problems with self awareness. [54] Crown Counsel submits that the PRA reveals that Mr. B-B. does not take responsibility for his actions, and rather blames his upbringing. However, I do not interpret the passages referenced by Crown Counsel in that light. I see those passages as

being Mr. B-B.'s attempts to try to understand his own actions, by making reference to childhood memories of sexual encounters, and his use of intoxicants. [55] Crown Counsel also points to Mr. B-B.'s denial to the probation officer, that he is sexually attracted to children, whereas he admitted to Dr. O'Donnell that he has had a fluctuating interests in pre-adolescent girls throughout his life. I view this inconsistency not as a reflection of Mr. B-B.'s dishonesty, but rather an indicator of the improvements and self awareness he has likely gained through counselling. The PSR was prepared in October 2024, only about two months after counselling had started with Mr. Guerra Mella; and the PRA was prepared on January 27, 2025, by which time Mr. B-B. had completed another three months of counselling. D. Expert Evidence [56] This court also received expert opinion evidence tendered by the Defence. [57] An expert report was provided by Mr. Guerra Mella, registered clinical counsellor. Mr. Guerra Mella was qualified to provide expert opinion evidence in the area of trauma-informed care and culturally sensitive practices within Indigenous communities, with a focus on behaviours often observed in cases of sexual assault. His expertise includes applying the Medicine Wheel and Psychosocial Dislocation Theory to address social and systemic factors impacting Indigenous individuals. [58]

Mr. Guerra Mella testified that Mr. B-B. attended for treatment with him through self referral. He has been providing culturally informed treatment to Mr. B-B. since August 2024, on a once weekly basis. [59] According to Mr. Guerra Mella, Mr. B-B.'s symptoms appear related to Adult Child Of An Alcoholic condition. He also noted that Mr. B-B. internalized his own abuse and failure to speak up in the face of it, as a way to show how much he loved his parents. Accordingly, "this form of internalization led to the rationalization that tolerating abuse was connected to loving someone, or being loved by someone" (p 2). [60] Mr. Guerra Mella noted that these elements have been normalized by Mr. B-B.'s "history of being raised in an alcoholic home, resulting in experiencing emotional abandonment, role confusion, abuse, and a chaotic, unpredictable environment" (p. 3). [61] Mr. Guerra Mella opines that through treatment, he has been able to address and "assuage" most of the negative factors impacting Mr. B-B.'s life, specifically childhood trauma and Adult Child of an Alcoholic condition. He reports that Mr. B-B.'s outlook in life also seems to have improved through treatment. [62] Mr. Guerra Mella has plans to continue working with Mr. B-B. for ongoing treatment and recovery from his childhood traumas. V. Analysis [63] I now turn to considering the factors that are relevant in this

case, to arrive at a fit and just sentence. A. Aggravating Factors [64] Pursuant to s. 718.2, the presence of certain circumstances will constitute aggravating factors. These include: a) the abuse of a member of the offender's family (s. 718.2(ii)); b) the abuse of a person under the age of 18 (s. 718.2(a)(ii.1)); c) abuse of a position of trust or authority (s. 718.2(a)(iii)); d) a significant impact on the victim, when considering their age and personal circumstances (s. 718.2(a)(iii.1)). [65] All of these factors are present in this case. [66] J. is Mr. B-B.'s biological daughter and a member of his immediate family - she was living with her father during the period of abuse. The abuse occurred in the family home when her father put J. to bed on the weekends. In Friesen, the court noted that sexual violence that takes place in the home can be especially damaging as it damages the child's sense of security: at para.

178. To that end, J.'s mother reports that she remains fearful and is afraid to go to sleep in her bed. [67] J. was a young child at the time she was sexually abused by her father. Mr. B-B. agrees that he sexually touched J. between January 2021 and May 2023. At the time she was around the ages of five to seven. Due to her young age, J. was particularly vulnerable. [68] There is also no dispute that Mr. B-B. abused his position of trust or authority when he sexually touched J. The Court in Friesen made the following observations at paras. 126-130, regarding the impact of breach of trust as an aggravating factor (as summarized by defence counsel)[1]: a) Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence. b) A child will likely suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the child and the offender. c) The presence of a trust relationship might inhibit children from reporting sexual violence. The breach of trust may produce feelings of fear and shame that further discourage reporting. d) These barriers to reporting can be particularly pronounced where the perpetrator of the sexual violence resides with the victim and is a parent or caregiver. e) The abuse of a position of trust is also aggravating because it increases the offender's degree of responsibility. An

offender who stand in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger. A breach of the duty of protection and care thus enhances moral blameworthiness. f) The abuse of a position of trust also exploits children's particular vulnerability to trusted adults, which is especially morally blameworthy. g) All things being equal, an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child. [69] In relation to the above, I note that there was a high degree of trust between J. and her father, based on the close relationship between the two of them. Mr. B-B. described this close relationship with J. to the author of the Gladue Report (p. 6). [70] I also note that the presence of this trust relationship inhibited J. from reporting the sexual violence. The PSR and the PRA note that the Offence came to light when J. made a disclosure to the staff at her after school care program during a lecture about respect and inappropriate touching. When asked about the disclosure afterwards, J. expressed fear and worry about reporting the matter as her father "does not let her talk about it and she did not want to get into trouble": PRA at p.

2. J. was reportedly worried that the staff members would tell her mother. Her father had "told her not to tell anyone and she was scared her dad would get mad at her": PRA at p. 2. [71] J.'s mother provided a detailed victim impact statement on behalf of J., which described the significant emotional impact the sexual violence has had on her. J. has general anxiety and separation anxiety. She does not feel safe, and is afraid to be alone. She has frequent nightmares, and is fearful of the night. For a very long time she was afraid around men and boys, though she is slowly overcoming this through therapy. She has confusing and complex feelings around her father. She misses her father and is confused about why he is gone, but is also relieved. She blames herself for things, and thinks she is bad. Her schooling has suffered due to loss of self confidence and constant fear. She acts out at school, and gets angry and frustrated and throws things. [72] In noting the harm to J., I have not placed reliance on her mother's report that J. has an enlarged clitoris as a result of the digital manipulation of her clitoris by her father. While I have no doubt that the mother believes this to be the case, as defence counsel correctly noted, there is no objective evidence to support this assertion. [73] The Victim Impact Statement further details the devastating financial impact and uncertainty

that J. has experienced due to the unexpected and abrupt removal of Mr. B-B. from the family home. The family is now relying exclusively on J.'s mother's income. Ms. M. described their situation as being on the "brink of homelessness". They had to move after J.'s father was arrested, as they could no longer afford to live in the same home. J. is restricted in what comforts her mother can buy her, and is no longer able to participate in activities such as soccer and dance, which she enjoyed but her mother can no longer afford. Those activities would be especially important now to J. to give her some normalcy in her life. Her mother can no longer afford to put money away in RESP's and is worried about her ability to fund J.'s education in the future. J. will require counselling or therapy indefinitely into the future, and Ms. M. is uncertain how they will afford that. [74] Ms. M. also describes the cascading effect that this offence has had on herself and the larger family system on which J. has relied on for support. Ms. M. is no longer close to her other family members, and is isolated from friends and family as they do not understand her situation. She has had suicidal thoughts, and is fearful, anxious and depressed, and does not trust people. Ms. M. feels constant fear that she will not be able to protect her child, and is quick to anger and easily gets frustrated, she

suffers constant headaches. She now works 6 days per week, which means that she is not around as much for J. as she would like to be. [75] In addition to the statutory aggravating factors, there exist other factors in this case which are aggravating, such as Indigenous heritage, duration and frequency, and degree of physical interference: Friesen at paras. 70, 131-133, 139. [76] J. is Indigenous. It is well established that Indigenous people (particularly women) are particularly vulnerable to sexual violence and experience childhood sexual violence at a disproportionate level: Friesen at para. 70. [77] As noted in R. v. C.C.C., 2021 BCSC 599 by Marchand J. (as he then was): [33] One of my takeaways from the Inquiry's [National Inquiry into Missing and Murdered Indigenous Women and Girls] work is that Canada's colonial history and destructive assimilationist policies, as well as racism and sexism, have embedded and normalized violence into the everyday lives of Indigenous women, girls, and gender-diverse people. [78] The sexual violence in this case was prolonged and frequent. It happened on a regular basis on weekends for a period of almost two-and-a-half years. [79] In Friesen, the Court noted that there is no hierarchy of physical acts, and courts should consider all forms of sexual touching as inherently violent. In this case, while three was no physical penetration, Mr.

B-B. had repeated and frequent contact with J.'s vagina. Mr. B-B. rubbed and touched his daughter's vagina with his hands on a regular basis. On at least on occasion, he touched J.'s vagina with his penis, and on at least one occasion, J. touched her father's penis with her hand. [80] In summary, J. was very young and highly vulnerable to the abuse which she experienced at the hands of her father, who was in a position of trust. Mr. B-B. took advantage of his close personal relationship with J. and told her keep the abuse a secret. The abuse was prolonged and invasive as there was frequent touching of her genitalia, including on at least one occasion, with Mr. B-B.'s penis, and breached J.'s bodily integrity. J. was fearful of disclosing the abuse. Mr. B-B. did not stop abusing J. on his own volition; rather he only stopped the sexual abuse after J. reported it. The abuse occurred in the family home and while putting J. to bed - a place and time where a child has the highest expectation that they will be safe and protected by their loving parent. Rather than protecting J. as he was entrusted to do, Mr. B-B. put his sexual gratification ahead of J.'s needs, and in doing so violated her trust in the most profound and deepest way possible for a parent. B. Mitigating Factors [81] I now turn to the mitigating factors. A number of them exist in this case. [82] Mr. B-B. does not have

a criminal record. Further, he has been under strict bail conditions since his arrest approximately one-and-a-half years ago, and has been in full compliance with no breaches. [83] Mr. B-B. also entered a very early guilty plea. He was cooperative with the police upon arrest, and almost immediately thereafter, provided a confession to his psychiatrist admitting the abuse. His guilty plea was entered less than a year after his arrest, and prior to a preliminary inquiry being held. He thus spared J. a traumatic relieving of the abuse and the anxiety and fear that goes with testifying in a court proceeding. [84] In addition, Mr. B-B. has taken great strides towards addressing some of the underlying causes of his offending behaviour - he has been sober since shortly after his arrest and he has committed to counselling. [85] It is also evident that there exist in this case background or systemic factors that may have contributed to Mr. B-B. appearing before the court and which thus diminish his moral blameworthiness. [86] In Friesen at para. 92, the Court noted the importance of considering the offender's Indigenous heritage: [92] Likewise, where the person before the court is Indigenous, courts must apply the principles from [Gladue], and Ipeelee. The sentencing judge must apply these principles even in extremely grave cases of sexual violence against children (see Ipeelee, at paras. 84-86). The systemic and background factors that have played a role in bringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness (para.

73) Similarly, a different or alternative sanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74). [87] The Gladue factors here include a traumatic childhood where he was subjected to physical abuse, sexual abuse, and witnessed violence against his mother; separation from his sister at a very young age, and fragmentation of his family following his parents separation; fragmentation from his community; loss of his grandmother who was a parental figure to him; frequent relocation between the homes of various family members; exposure to alcohol and drugs at an early age; normalization of violence and abuse; family substance abuse issues with both his parents and his step grandfather; personal substance abuse issues which he has only recently brought under control; serious mental health concerns; high rates of unemployment; and loss of language and culture. [88] In addition, the letter of support provided by his colleague and friend is revealing. The letter describes Mr. B-B. as a hardworking and dedicated individual, and efforts to remain sober and rebuild his life. The author also notes that Mr. B-B. has shown remorse for his actions and believes that he has the capacity to reintegrate into society as a responsible and contributing individual. [89] Mr. B-B.'s feelings of remorse are also noted by the clinical counsellor,

and others. [90] It is also notable that despite the heinous violence committed by Mr. B-B. against their daughter, J.'s mother has been supportive of Mr. B-B.'s rehabilitation and believes that he is genuinely remorseful for his actions. C. Other Considerations [91] The PRA reports that Mr. B-B. is at a moderate risk of committing sexual violence against children, and at low risk for committing other forms of sexual violence. However, this risk assessment is tempered by the author's indication that it is subject to change. [92] With respect to the sexual violence risk assessment, Dr. O'Donnell notes that "risk for sexual violence is dynamic and contextual, fluctuating over time in concert with changes in life circumstances. Therefore, sexual violence risk assessment and management decisions made using the RSVP-V2 have a natural lifespan and should be updated at routine intervals or in response to events or occurrences that may signal important changes in risk": p. 10. [93] In this case, I note that Mr. B-B. has made considerable progress towards addressing his childhood traumas and substance use, all of which played a contributing role towards the offending behaviour. [94] I also note that despite the presence of significant Gladue factors in this case, defence counsel does not suggest that a community based sentence would be appropriate. D. Sentencing Parity [95] Every case

is unique and must be considered on its own set of facts. A fit and just sentence can only be crafted having regard to the particular circumstances that are present in the case before me. Nevertheless, it is important for the court to be mindful of other like cases in order to ensure that similar offenders who are situated in similar circumstances receive similar sentences. [96] To that end, the Crown counsel and Defence Counsel have both presented this court with authorities that support their respective positions, and which counsel say will assist in crafting a fit and just sentence in this case. [97] The authorities relied on by the Crown to support a prison sentence of 8 years, are: R. v. J.S.S., 2022 BCPC 96; R. v. AHK, 2022 BCSC 1563; R. v. H.C.T.T., 2020 BCCA 366; R. v. Adams, 2022 BCSC 1519. All these cases are post Friesen, except H.C.T.T. [98] The Crown Counsel submits that of these cases, J.S.S. is the most analogous in terms of the facts. This is because J.S.S. involves long term abuse of a child by a parent. I adopt the following summary of J.S.S. provided the Crown:[2] The offender abused his biological daughter for a period of 6 years, starting when she was 6. He stopped after she disclosed it to a friend who brought it to family and the police. A few times a month, he would force the victim to masturbate him and put his penis in her mouth. He would touch her

buttocks and vagina, put his fingers in her vagina, and put his mouth on it. She would plead with him to stop when he attempted to penetrate her vagina and anus. He stopped these attempts not because she asked, but because she was too small. He had no criminal record (paragraph 38). Judge Koturbash sentenced the offender to 8 years of jail (paragraph 78). [99] However, as Defence Counsel correctly notes, J.S.S. is distinguishable on the facts. First, J.S.S. was not Indigenous and did not have Gladue factors for consideration. Second, he persisted with the abuse despite his daughter's tears. Third, He also exposed her to contracting venereal disease. Fourth, the abuse lasted for a period of 5 yrs, and included attempts at vaginal and anal penetration - the offender only stopped because it was physically impossible to penetrate the child. These all make the circumstances in J.S.S. more aggravating than those before me. [100] The remaining cases relied on by the Crown, are equally distinguishable. Though it is not possible to summarize them all here, I have considered them all. [101] I have also considered the authorities relied on by the Defence to support the defence position of 3 years incarceration. These include: R. v. G.J.M., 2024 BCCA 82; R. v. C.K., 2023 BCCA 468; R. v. P.R.J., 2023 BCCA 169; R. v. C.C.C., 2021 BCSC 599; R. v. J.N.P., 2020 BCSC 570. Like the Crown

Counsel's cases, the Defence Counsel's cases are also distinguishable on the facts. [102] Of the cases presented by the Defence, Only P.R.J. involved abuse of a child by a parent. In that case, the child's mother sexually abused her daughter when she was seven or eight years old. The sexual abuse consisted of a single incident in which the offender digitally penetrated and kissed the victim's vagina. The offender was convicted of sexual interference after trial and was initially sentenced to a 23-month conditional sentence. The Court of Appeal allowed the Crown appeal on sentence and imposed a three year jail sentence. I accept that P.R.J. did not involve an early guilty plea or an Indigenous offender, and also involved digital penetration which was not present in this case; however, the circumstances of the abuse in this case are more serious - the abuse of J. occurred over several years on a weekly basis when the child was being put to bed, and stopped only when the child reported it to authorities. [103] I also note that in G.J.M., the court of appeal imposed a five year sentence for the sexual interference offence, which occurred over a period of approximately six years by the victims half brother. Notably, the offender in G.J.M. was 18 years old when he started abusing the child, and was in a lesser position of trust in relation to the victim. However, no Gladue factors

were present in that case. [104] The Defence counsel also relies on C.C.C., which involved an Indigenous offender with Indigenous victim - though he was not the child's father, he was step-grandfather and father figure. Over the course of several months, the offender had the victim touch his penis, sexually touched her, and had forced vaginal intercourse with her. The victim was 11 years old and the offender was in his sixties at the time of the abuse, which took place in the family home. Significant Gladue factors and community support, and was found to be a low risk to reoffend. He was given a five year penitentiary sentence. [105] While I agree with the defence that certain aggravating factors are not present here that were present in C.C.C. - such as the physically invasive and intrusive nature of the abuse, which at times was perpetrated by C.C.C. through the use of physical force and accompanied by verbal abuse. These are off set by other considerations that make the case at bar more serious, such as Mr. B-B. being the child's father and in a higher position of trust, and the abuse occurring over a period of years and rather than months. [106] Nevertheless, C.C.C. shares some similarities to this case - i.e. an Indigenous female victim and an Indigenous offender. The presence of these facts make my task particularly difficult - as I must ensure that I adequately consider

the unique vulnerability to sexual violence of J. as an Indigenous girl, while at the same time give due consideration to Mr. B-B.'s personal circumstances and the large number of Gladue factors which are present in this case. VI. Conclusion [107] As noted at the outset, denunciation and deterrence are the primary sentencing principles when it comes to sexual offences against young children. [108] There is no amount of penal sentence that will ever give J. back the childhood that her father robbed her of. [109] The best this court can do is carve a fit sentence which considers the gravity of the offence, along with Mr. B-B.'s degree of moral responsibility. [110] The offence in this case was very grave, as reflected by the maximum sentence of 14 years that a conviction under s. 151 of the Criminal Code carries. The circumstances of the offence also reveal the degree of gravity - the victim in this case was a young child, who was taken advantage of by her father repeatedly over a period of more than two years, in the most vulnerable of circumstances - in her own home, and in the safety and comfort of her own bed, by a person who was entrusted to keep her safe from harm. [111] The fact that J. is Indigenous is also worth noting given "the inherent harmfulness and wrongfulness of sexual abuse of vulnerable girls, in particular Indigenous girls": C.C.C. at para. 94. [112] Since Mr.

B-B.'s abrupt removal from the family home, J. has lost a stable family system, and experienced housing insecurity, financial insecurity, and food insecurity. She is afraid to be alone, especially in the dark. The safe spaces that every child should have - their bedroom and their bed, and in the arms of a parent - no longer feel safe for her. Her loss of innocence has been coupled with the loss of her father and extended family members. Her mother, who she needs more than ever, is herself dealing with suicidal thoughts, depression, and anxiety, and is working six days per week just to meet their basic needs. [113] To that end, Mr. B-B. has a high degree of moral blameworthiness. He was a mature adult who ought to have been aware of the profound pain and hurt he was inflicting on his child. Rather than protecting her from harm, he inflicted harm on her. His actions were intentional and inexcusable. He gave primacy to his sexual gratification and took advantage of his daughter's love for him. He told her to keep the abuse a secret causing her to be afraid to disclose the abuse to anyone, forcing her to suffer in silence for more than two years. He caused her pain and trauma that will take years, if not a lifetime, to heal. He caused unbearable pain that no child should ever have to bear, and instilled in her mistrust of others, particularly men. This has had an impact on her

relationships with boys and men, and will no doubt affect her long into the future. [114] As Justice Marchand, as he then was, held in C.C.C.: [54] Sexual violence violates the personal autonomy, bodily integrity, sexual integrity, dignity and equality of children. In addition to physical harm, sexual violence is traumatizing to children and can cause a wide range of life-altering emotional and psychological harms, including post-traumatic stress disorder, substance abuse, mental illness, anxiety, depression, low self-esteem, anger, self- harming behaviours, and problems forming interpersonal relationships. These harms can perpetuate gender and heritage-based inequities and have ripple effects through families and communities. [115] Such is the case here. The circumstances are even more tragic as they offender and the victim share a strong familial bond and the same Indigenous heritage, and the same vulnerabilities that at once make this case more egregious than many, and yet mitigate some of Mr. B-B.'s blameworthiness in accordance with the Glaude principles. [116] Mr. B-B. had a traumatic childhood and unique circumstances that have contributed to Mr. B-B. coming before the court. There is reliable evidence before this court as to the impact of the highly disruptive and traumatic childhood suffered by Mr. B-B. on his offending. He was exposed to violence and substance abuse

at an early age, by parents that were dealing with their own substance issues. His offending reportedly occurred while he was consuming intoxicants. He has expressed significant remorse, and to that end has taken responsibly by entering an early guilty plea. He has also worked hard towards addressing these underlying issues, and has built a strong support network. [117] Yet I have to take into account that while he poses a low risk for sexual offences against adults, he poses a moderate risk to re-offend against children, which is the crime for which he is being punished. [118] In arriving at a fit and just sentence, I have also considered "alternative sentencing procedures and sanctions which may be appropriate in the circumstances, including procedures and sanctions that take a more rehabilitative, more restorative and less punitive approach": C.C.C. at para.

101. In this case I find that a period of incarceration is the only sentence that would adequately address the need for denunciation and deterrence, as well as the gravity of the offence and the degree of moral culpability. VII. Sentence [119] Mr. B-B., will you please rise. [120] After taking all the relevant factors into consideration, I sentence you to serve a jail sentence of 4.5 years. In my view, this sentence achieves the goals of denunciation and deterrence, and reflects the gravity of your offence and the high degree of moral blameworthiness, while also taking into account the various mitigating factors. [121] I also make the following ancillary orders: a) Pursuant to s. 487.051, I make an order in Form 5.03 authorizing the taking from you for the purpose of forensic DNA analysis, any number of samples of one or more bodily substances that are reasonably required for that purpose by means of the investigative procedures described in s. 487.06(1). b) Pursuant to ss. 490.012 and 490.013, you must comply with the obligations of the Sex Offender Information Registration Act for a period of 20 years. c) Pursuant to s. 109(1)(a), you are prohibited from owning, possessing or carrying any firearm, crossbow, prohibited weapon, ammunition, or explosive substance, for a period of 10 years. d) Pursuant to s. 161(1)(a) and (b), you are prohibited from the following enumerated

activities for a period of 10 years: i. Attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school-ground, playground or community centre. ii. Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards female persons under the age of 16. The exception is if the communication, contact, or your presence is in the course of your employment with customers or coworkers, as long as you have given a copy of this order to your employer and your employer agrees to provide supervision by an employee. e) Pursuant to s. 743.21 of the Code, you must not have any direct or indirect contact or communication with J.B-B. during the custodial portion of your sentence. [122] A prohibition order will be prepared by the appropriate authority and served upon Mr. B-B. I delegate to that appropriate authority the duty to inform Mr. B-B. of the consequences of violating my prohibition order. [123] Mr. B-B., I hope that you will continue with your healing journey and take advantage of the programming available in the prison system. Judging from the accounts of the people that you have surrounded yourself with, you have a lot to offer. I also hope that you will do all that you can within your power, to end this cycle of violence and abuse so that you can bring healing to yourself, your child, your family, and the community. "Shergill J." [1] Defence Counsel's Written Submissions on Sentence, para. 47. [2] CC Written Submissions on Sentence, at para. 25.