R. v. C.C.H.

2020 BCCA 162 R. v. C.C.H.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. C.C.H. 2020 BCCA 162 Date: 20200610 Docket: CA46590 Between: Regina Respondent And C.C.H. Appellant Restriction on Publication: Section 486.4(1) Criminal Code: An order under this section may be made in cases involving sexual offences to ban publication of any information that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. This version of the reasons for judgment has been redacted to comply with section 486.4(1) of the Criminal Code. An unredacted version has been made available to counsel only. Section 16(4) Sex Offender Information and Registration Act: This section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA. Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Harris On appeal from: An order of the Provincial Court of British Columbia, dated December 6, 2019 (R. v. C.C.H., Surrey Registry File 233580) Counsel for the Appellant, (via videoconference): S. Bose Counsel for the Respondent, (via videoconference): S.E. Elliott Place and Date of Hearing: Vancouver, British Columbia May 28, 2020 Place and Date of Judgment: Vancouver, British Columbia June 10, 2020 Written Reasons

by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Harris Summary: Court of Appeal upholds sentence of three years' imprisonment imposed on appellant, who pleaded guilty to one count of sexual exploitation of a disabled person. He stood in a position of trust vis-à-vis that person, who because of her disability was unable to call for help or resist him physically. Sentencing judge had not erred in failing to consider rehabilitation and appellant's low risk of reoffending, but the sentence was fully justified by the appellant's high moral culpability for prolonged and repeated offences against the victim, breaching the trust placed in the appellant by her family, and the impact of the crime on her and her family generally. Applicability of R. v. Friesen discussed. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] C.C.H., now in his late 70s, appeals a sentence of three years' imprisonment pronounced by the Honourable Judge R. Hamilton after C.C.H. pleaded guilty to one count of sexual exploitation of a person with a disability contrary to s. 153.1 of the Criminal Code. He had also been charged with sexual assault under s. 271, but the Crown agreed to stay that charge, apparently in return for the guilty plea. [2] C.C.H.'s victim was A.B. As the sentencing judge noted, A.B. is confined to a

wheelchair, has no control over her limbs, suffers from cognitive delays, and requires assistance in all facets of her daily living. Although at the time of sentencing she was 19 or 20 years old chronologically, she is at the level of a grade 1 or 2 child in terms of intellect. The sentencing judge found that she is "closer to the child end" of the spectrum than to the adult end. (At para. 44.) [3] The H. family entered A.B.'s life when she was about 3 years old and A.B. has always considered the appellant to be her . In October 2017, A.B.'s previous caregiver had to quit for health reasons and a replacement was needed. The appellant, who is retired, agreed to fill in as the caregiver. With respect to A.B., this included having to change her diaper, clean her genital area, and assist her onto the toilet. The parents paid the appellant $600 per month for his services. [4] In November 2018, a family friend noticed C.C.H. kissing A.B. on her mouth and reported the kiss to A.B.'s mother. When questioned about it, A.B. disclosed to that C.C.H. had been touching her for several months inappropriately, including by penetrating her vagina digitally, kissing her vagina, and kissing and fondling her breasts. The sentencing judge found that A.B. had told the appellant to stop, but he did not do so. Her disability prevented her from calling out for help. As the judge noted, she "was and is

as vulnerable to criminal acts by others as anyone could imagine." (At para. 13.) [5] On August 6, 2019, the appellant pleaded guilty to the charge under s. 153.1 of the Code, thus removing the necessity for a trial that would have been very difficult for A.B. and her family. This was considered as a "significant mitigating factor" in the judge's sentencing analysis. [6] At para. 30 of his reasons, the sentencing judge emphasized the "enormous breach of trust and human values" implicit in C.C.H.'s conduct. In the Court's words: The family turned to [C.C.H.] because they trusted him, without reservation, that he would lovingly and responsibly care for his grandchildren. By virtue of his sexual offending against [A.B.], [C.C.H.] shattered that trust to its core. For anyone faced with the responsibility to care for such a vulnerable person as [A.B.] to then violate the trust and sexually offend against their charge is such an enormous breach of trust and human values, it is difficult to capture with words. To put it shortly, the breach of trust in this case is as enormous a violation of trust as one can imagine. [A.B.'s] personal, physical and sexual integrity were violated by the one person nobody would worry about caring for his , but it happened. I cannot overstate this aggravating factor in my decision. [7] Other family members spoke in their victim impact statements of the

terrible effects of the offence; but it was A.B. herself, of course, who was most affected. Her victim impact statement speaks of the "movie" she has in her head of the abuse. She says she cannot stop the movie "from playing over and over in my head". She continues to "struggle to search for hope every day" and cannot understand why the appellant did what he did to her. In her words, "I was vulnerable but that should not have made me the target." Psychological Reports [8] The sentencing judge had before him a psychological assessment of the appellant prepared by Dr. Evan Lopes of the Forensic Psychiatric Services Commission. C.C.H. told Dr. Lopes that he was "not sure as to why he did it", but that he had justified abusing A.B. to himself on the basis that he was "helping" her. C.C.H. had no record of criminal conduct apart from the offence and had maintained a "quiet, uneventful and pro-social lifestyle." Dr. Lopes found no known reason to believe he is a danger to the community. Indeed, the appellant was given a very low score of risk for future sexual recidivism and indicated his willingness to attend treatment programs. [9] The Court also had a pre-sentence report ("PSR") which painted a picture of a rather ordinary person who had limited education and had worked in various jobs before retiring at age 65. He had been married twice and had four children. When young, had used

marihuana and alcohol to excess, but no longer uses those substances. [10] C.C.H. told the author of the PSR that he began touching A.B. in order to bring her some sexual satisfaction, and thought she was enjoying herself when he touched her inappropriately. He admitted that she had asked him to stop, but she was unable because of her physical limitations to move away or resist and he continued to touch her sexually on several occasions for some months. [11] The judge noted that C.C.H. expressed "heartfelt remorse" at the sentencing hearing for his conduct. Parties' Positions at Hearing [12] The offence created by s. 153.1 carries a maximum sentence of five years. (In contrast, the offence of sexual assault carried a maximum of ten years' imprisonment.) At the sentencing hearing, the Crown sought a penitentiary term of imprisonment of three years for C.C.H.; the appellant sought a conditional sentence order ("CSO") of between nine and 18 months that could be served in the community, together with a requirement of 200 hours of community work service. If a CSO was found to be inappropriate, the defence submitted that the range of imprisonment should be between four and six months. [13] The Crown cited several Ontario cases, including R. v. C.C. 2013 ONSC 654; R. v. D.M. 2019 ONSC 5407 and R. v. V.S. 2013 ONSC 6026. All of these involved sexual offences against either children or

disabled persons who were severely dependent and were abused by family members or friends. The sentences imposed were three, five and four years, respectively. In a similar case, R. v. Thompson 2017 SKCA 33, the Saskatchewan Court of Appeal overturned a sentence of 22 months and replaced it with three years. [14] The defence relied on somewhat older cases, including R. v. Proulx 2000 SCC 5, for the proposition that a CSO would be appropriate in this case. I note that at the hearing below, counsel also mentioned a companion case to Proulx, which I take to mean R. v. L.F.W. 2000 SCC 6. In that instance, a majority of the Supreme Court upheld the imposition of a CSO on an offender who was convicted of one count of indecent assault and one of gross indecency on a child between six and twelve years of age. Even though the offender had committed "terrible offences" and had expressed no remorse (see para. 20), the majority found that the trial judge had considered all relevant sentencing principles, including denunciation and deterrence, and had not erred in granting a CSO. The minority on the other hand regarded a CSO as demonstrably unfit, observing that the principle of denunciation weighs "particularly heavily in cases of offences perpetrated against children by adults in positions of trust and authority." (At para. 29.) [15] The defence in the case at bar also cited R. v.

Streichert 2001 BCCA 502, which upheld a four-month jail term plus 20 months' probation for the sexual touching of a 14-year old complainant. The sentencing judge in the case at bar described that sentence as an "outlier" and as no longer consistent with current sentencing law. (At para. 55.) The judge was also referred to R. v. D.T. 2011 ONCJ 545, which involved a disabled victim who was in a wheelchair due to cerebral palsy. The offender, her uncle, received the then-maximum sentence of 18 months in jail (the Crown having proceeded summarily), plus three years' probation. The Crown had also proceeded summarily in R. v. J.K. 2015 BCPC 246, where the offender was a pastor in a small town who had engaged in the sexual touching of a student some 25 years before trial. He received a sentence of one year in prison. Sentencing Judge's Conclusions [16] The sentencing judge in the case at bar viewed a CSO as inadequate to meet the relevant sentencing principles. In his analysis, A.B.'s vulnerability, the appellant's prolonged breach of trust and A.B.'s unheeded pleas for him to stop the sexual abuse, all called out for a "sentence to be served in real jail." (At para. 65.) The judge also noted the comments of Moldaver J.A., as he then was, for the Court in R. v. D.D. (2002) 58 O.R. (3d) 788 (C.A.): The overall message, however, is meant to be clear. Adult sexual predators who put the

lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by parliament in s. 718(a), (b), and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing. [At para. 34; emphasis added.] These factors were seen as somewhat applicable in A.B.'s case, even though she was not chronologically a child, but "the equivalent of a child" in most other respects. (At para. 67.) [17] The sentencing judge then moved to the key part of his reasoning: I confess, I have struggled with this decision. I have seriously considered a sentence of two years in jail followed by three years of probation but it is very difficult to articulate a reason why a two-year jail sentence would be a fit sentence. The period of probation would include protective conditions preventing [C.C.H.] from having contact with or coming within 100 metres of [A.B.] and her family, but given the destruction of the relationships within this family, those protective conditions, I find, are not needed. The other term of a probation order would include counselling so that [C.C.H.] could pursue further sex offender

counselling once out of jail. I am of the view that any benefit to [C.C.H.] by taking the sex offender treatment program can be gained during the course of his incarceration. His crimes against [A.B.] were opportunistic. That opportunity will never again present itself to [C.C.H.]. I find that rehabilitating [C.C.H.] is not a pressing sentencing objective given the opportunistic crime and [C.C.H.'s] low risk to reoffend. Bearing in mind the need to denounce the crime in this case, to deter like-minded offenders, [C.C.H.'s] high moral culpability for his prolonged and repeated offences against [A.B.] and for breaching the family trust placed in [C.C.H.] and the impact this crime has had on [A.B.] and the family generally, I have determined that a conventional jail sentence is required in this case. [At paras. 69ꟷ71; emphasis added.] Keeping in mind the principle of proportionality, he concluded that a fit sentence was three years to be served in a federal penitentiary. On Appeal [18] C.C.H. appeals his sentence on the following grounds, namely: a) The sentencing judge erred in law when he concluded that because rehabilitation was not a pressing consideration, that a sentence of three years' incarceration was more appropriate than a two-year sentence with three years' probation. b) The sentencing judge erred in failing to give sufficient weight to the principle of

rehabilitation. c) The sentencing judge erred in imposing an unfit sentence. At para. 33 of his written submissions, the appellant also asserts that the sentencing judge failed to give effect to the principles of proportionality and parity. Standard of Review [19] C.C.H. acknowledges that this court may interfere only when a sentencing court has made an error in principle or imposed a demonstrably unfit sentence. (Citing R. v. L.S.N. 2020 BCCA 109 at para. 49.) Recently, in R. v. Friesen 2020 SCC 9, the Court clarified that appellate intervention is justified only if (1) the sentence is demonstrably unfit or (2) the sentencing judge made an error in principle that had an impact on the sentence. (See also R. v. Lacasse, 2015 SCC 64.) The Court in Friesen observed: Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error of principal "[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably. (R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.) at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only interfere if it is apparent from the trial judge's reasons and that the error had an impact

on the sentence (Lacasse, at para. 44). If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit. [At para. 26.] The Role of Rehabilitation [20] Under his first ground, the appellant submits that the judge below erred in principle by "conflating" the rehabilitative purpose of a probation order -- as opposed to the purpose of a custodial sentence, which in the appellant's submission is primarily to punish the offender for the criminal act in question. (Citing Winko v. British Columbia (Forensic Psychiatric Institute) [1999] 2 S.C.R. 625 at para. 93.) As well, the appellant emphasizes that an offender's positive potential for rehabilitation "should work to his benefit on sentencing": see R. v. Gouliaeff 2012 ONCA 690 at para 12. [21] At the hearing below, the defence focused on the possibility of a CSO, rather than on the terms of any probation order that might follow a term of imprisonment. In this court, on the other hand, the appellant did not argue strongly in favour of a CSO, although he did emphasize Dr. Lopes' recommendation of a "community-based" disposition. I am not persuaded the judge erred in rejecting a CSO as inadequate to meet the relevant sentencing principles of deterrence and denunciation in this case. These objectives must figure

largely in the sentencing of those who commit sexual crimes against the most vulnerable in our society. Conversely, I see no error in the judge's conclusion that rehabilitation was not a particularly relevant sentencing objective, given the opportunistic nature of the crime and the low risk of reoffending. (See para. 70.) [22] The appellant notes in particular the judge's comment at para. 69 that he had seriously considered a sentence of two years' imprisonment followed by three years' probation. The judge rejected this alternative, observing that it was "very difficult to articulate" a reason why the two-year jail sentence would be fit. In terms of an appropriate period of imprisonment, the judge noted at para. 68 that the maximum sentence that could be imposed for this crime was five years' imprisonment. As I read his reasons, the judge regarded a two-year term as inadequate but three years as appropriate in light of the need to denounce the crime, to deter other offenders, C.C.H.'s high moral culpability for his prolonged and repeated offences against A.B. and for breaching the family trust placed in him, and the impact of the crime on A.B. and the family generally. (At para. 71.) [23] The appellant contends that the sentencing judge effectively held that because probation was unnecessary, a longer jail sentence should be considered in its place. It is said that the judge

"used the appellant's positive potential for rehabilitation as a reason to increase the custodial sentence" (my emphasis) that would otherwise have applied. I do not agree that the judge engaged in illogical reasoning of this kind, or that he failed to provide an explanation for his conclusion. As I read the reasons, he arrived at three rather than two years because of the factors mentioned in para. 71, having already rejected the appropriateness of a CSO. (At para. 65.) In separate reasoning, he also rejected the need for, and utility of, a probationary order in this case. (At para. 70.) Friesen [24] The sentence arrived at was, in my view, consistent with the comments of the Supreme Court of Canada in Friesen, which was released shortly after the sentencing judge issued his reasons in this case at bar. In Friesen, the Court discussed in some detail the prevalence of sexual violence against children, which has obviously been affected by the availability of social media and new technologies that enable sexual offenders. (See paras. 46-8.) At para 52, the Court noted that the "personal autonomy interest" of victims carries a "somewhat different meaning for children than it does for adults." The phrase "personal autonomy", the Court stated, refers to a child's right to develop to adulthood free from sexual interference and exploitation by adults. Beginning in 1987, Parliament had

shifted the focus of the criminal law towards sexual offences against children to a "child-centred" approach that emphasizes the trauma to the child victim from all acts of sexual violence. (At para. 53.) The Court continued: These developments are connected to a larger shift, as society has come to understand that the focus of the sexual offences scheme is not on sexual propriety but rather on wrongful interference with sexual integrity. As Professor Elaine Craig notes, "This shift from focusing on sexual propriety to sexual integrity 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 (as was more the case when the law's concern had a greater focus on sexual propriety)" (Troubling Sex: Towards a Legal Theory of Sexual Integrity (2012), at p. 68). This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that, as this court held in R. v. McCraw, [1991] 3 S.C.R. 72, "may often be more pervasive and permanent in its effect that any physical harm" (p. 81). [At paras. 55-6.] Beginning at para. 60, the

Court also referred to the additional harm to children caused by the damage to their relationships with their families and caregivers, which can result in "ripple effects" to the other social relationships of children. Effectively, sexual violence against children can harm the child's parents, caregivers and family members as secondary victims. (See paras. 63-4.) [25] The Court in Friesen urged Canadian courts to recognize "both the harm that sexual offences against children caused and the wrongfulness of sexual violence", especially when the proportionality principle is being considered. (At para. 74.) Under the heading "Parliament has Mandated that Sentences for Sexual Offences against Children Must Increase", the Court noted the increases in available sentences in the Criminal Code that had been enacted by Bill C-15 in 1987, by Bill C-2 in 2005 (when Parliament tripled the maximum sentences for sexual interference and certain related offences), and by the enactment of the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, which increased the maximum sentence from 10 to 14 years for certain sexual offences against children under age 16. The Supreme Court in Friesen reasoned: These successive increases in maximum sentences indicate Parliament's determination that sexual offences against children are to be treated as more grave than they had been in the past. As

Kasirer J.A. (as he then was) reasoned in Rayo, the legislative choice to increase the maximum sentence for child luring [translation] "must be understood as a sign of the gravity of this crime in the eyes of Parliament" (para. 125). We agree with Pepall J.A.'s conclusion in Stuckless (2019) that Parliament's legislative initiatives thus give effect to society's increased understanding of the gravity of sexual offences and their impact on children (paras. 90, 103 and 112). To respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament's view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [translation] "toughened sanctions" (para. 175; see also Woodward, at para. 58). Sentencing judges and appellate courts need to give effect to Parliament's clear and repeated signals to increase sentences imposed for these offences. [At paras. 99-100; emphasis added.] [26] The Court declined the Crown's invitation to create a "national starting point" or sentencing range for sexual offences against children. (At para. 106.) Courts were urged, however, to depart from prior sentencing ranges when Parliament

has raised the maximum sentence for an offence and when "society's understanding of the severity of the harm arising from that offence increases." (At para. 108.) The Court disapproved precedents that it perceived as restricting sentencing judges' discretion -- for example, by imposing a 'cap' on sentences can be exceeded only in exceptional circumstances. In the Court's words: sentencing judges must have the ability to impose substantial sentences for sexual offences against children when the gravity of the offence and the degree of responsibility of the offender so demand. There is no requirement for there to be rare or special circumstances in order to impose a substantial sentence where that substantial sentence is proportionate. [At para. 112; emphasis added.] Disabled Victims [27] It is but a short step to the principle that exactly the same harmful effects as were discussed in Friesen can apply, at least in a general way, to sexual offences against seriously disabled adults such as A.B. At para. 72 of Friesen, the Court noted that Canadians with disabilities experience sexual violence during childhood at a disproportionate level and that such persons are especially vulnerable because they may be perceived as easier to victimize, may be unable to fully understand or communicate what is happened to them, and face barriers in reporting the offences. This is now codified by

s. 718.04 of the Code, which states: 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances -- including because the person is Aboriginal and female -- the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [28] The appellant does not contend that Friesen does not apply in this case, even though A.B.'s chronological age was over 18 years when the abuse occurred. Indeed, the appellant submits at para. 36 of his written argument that this is an appropriate instance in which cases involving sexual offences against children or other vulnerable persons can provide guidance. Counsel emphasizes, however, that the maximum sentence under s. 153 is only five years -- substantially lower than the available sentence for sexual assault of an adult or of a child. [29] I have no doubt that because of A.B.'s intellectual age and serious physical disabilities, she was in a position of vulnerability at least equal to that of most children as a result of sexual abuse. She was unable to take physical steps to resist C.C.H.'s assaults and even had difficulty in communicating her objections. She experienced trauma that was certainly no less than that experienced by children as described in Friesen. Given this, and s. 718.04,

it is in my view appropriate to take some guidance from the principles enunciated in Friesen in the case at bar. [30] Ms. Elliott on behalf of the Crown brought to our attention several cases in which "substantial" sentences of imprisonment were imposed on persons offending against disabled adults: see, e.g., D.M., V.S., supra, R. v. Roberge 2007 ONCA 435. These indicate that a sentence of three years' imprisonment was not unfit in this case, especially given the added dimension of C.C.H.'s position of trust. [31] Conversely, the proposition that the appropriate range is somewhere between nine and 18 months' incarceration, cannot succeed. As the Crown points out, the series of cases relied on by the defence were decided prior to Friesen and in many of them the Crown had proceeded summarily. The lesson of Friesen is that sentences for sexual offences against children (and by extension disabled adults with serious physical and/or intellectual deficits) "must increase". (See para. 5.) The fact that s. 153.1 carries a maximum sentence that is lower than that applicable to many sexual offences against children does not in my view mean that the judge erred in finding guidance in the principles enunciated in Friesen. Whether that case has overtaken earlier cases such L.F.W., in which CSOs were imposed with some regularity on (inter alia) offenders who had sexually abused children, was

not addressed in Friesen and remains to be seen. [32] In the result, I cannot agree that the sentence imposed in C.C.H.'s case was disproportionate or that the sentencing judge failed to give sufficient weight to the principle of rehabilitation or to parity or proportionality. Clearly he balanced the fact of the guilty plea, the appellant's remorse and his low risk of reoffending against the very serious harm he had caused to an utterly helpless victim who together with her family had trusted him as a grandfather. [33] Seeing no error in the sentencing judge's reasons or in the sentence itself, I would dismiss the appeal. "The Honourable Madam Justice Newbury" I AGREE: "The Honourable Mr. Justice Tysoe" I AGREE: "The Honourable Mr. Justice Harris"