R. v. F.M.

2020 BCSC 1884 R. v. F.M.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. F.M., 2020 BCSC 1884 Date: 20201029 Docket: 39920‑2 Registry: Duncan Regina v. F.M. Restriction on Publication: Pursuant to s. 486.4(2) of the Criminal Code, information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. Before: The Honourable Mr. Justice Verhoeven Oral Reasons for Sentence Counsel for the Crown: M. Giri Counsel for the Accused: S.W. Sheets Place and Date of Hearing: Duncan, B.C. October 29, 2020 Place and Date of Judgment: Duncan, B.C. October 29, 2020 THE COURT: [1] F.M. is before me for sentencing. On January 24, 2020 I found him guilty of two counts of touching a person under the age of 16 years for a sexual purpose, contrary to s. 151 of the Criminal Code, R.S.C., 1985, c. C-46 [Code]. The Circumstances of the Offences [2] I issued reasons for conviction which are indexed at 2020 BCSC 120. They set out the full circumstances of the offences in question. [3] As set out in paras. 2 through 5 of the reasons for conviction, Count 1 alleged that the offender touched his step-daughter T.E. for a sexual purpose between September 1, 2015, and May 23, 2017. [4] During the time period covered by Count 1, the offender was married to T.E.'s mother, M.M. The incidents giving rise to Count 1 were alleged to have occurred when T.E. was 11 to 13

years of age. [5] Count 2 alleged that F.M. touched his daughter I.M., a person under the age of 16 years, for a sexual purpose. I.M. is the daughter of the offender, F.M., and his former spouse, M.M. As alleged, the incidents within Count 2 were said to have occurred when I.M. was between four and five years of age, and 10 years of age. [6] The reasons for conviction set out the circumstances of the offences. First, with respect to T.E., the circumstances are set out in detail at paras. 19 through 38 of the judgment, where I summarized the testimony of T.E. Ultimately, I accepted her evidence. [7] Similarly, with respect to I.M., the findings I made were based upon her testimony as set out in para. 41 of the reasons for conviction. [8] Specifically, at paras. 137 to 138, I accepted the evidence of T.E., and at paras. 142‑143, I accepted the evidence of I.M. [9] In coming to my conclusions I also evaluated the evidence of F.M. and rejected it. I also rejected certain theories put forward by F.M. in his evidence at trial. Specifically, at paras. 116 through 119, I considered and rejected his contention that the allegations were manufactured, and that they were orchestrated by his former spouse M.M. [10] In brief, T.E. testified that when the offender was in a stepfather role vis-à-vis her, he sexually assaulted her on numerous occasions, beginning with an episode that occurred

on a Friday night, when her mother M.M. was away for the weekend. The evidence indicated that this was in late 2015. On that occasion she was sexually assaulted in her bedroom. I quote paras. 21 and 23-24 of the reasons for conviction: [21] T.E. testified that on the Friday night, she went to bed early, possibly around 8 p.m. because she was tired, having gone to school that day. She woke up when F.M. entered her bedroom around 10 to 12 p.m. She was wearing a T-shirt and pyjama pants, with no underwear. F.M. touched her buttocks, her breasts, and penetrated her vagina with his fingers. She could tell that he had been drinking a lot. . . . [23] T.E. told F.M. to leave her alone and get out of her room, but he refused. [24] F.M. removed his belt, and forced her to stimulate his penis by moving her hand up and down on it repeatedly. In her police statement she said she thought this went on for half an hour. At trial, she said that this went on for a really long time, and when asked to elaborate, in terms of minutes, she said probably 20 minutes to an hour. She described severe stinging pain when she went to the bathroom afterwards. I infer she was referring to pain in her genitals. [11] She referred to a similar incident that occurred the following day. She testified that similar incidents with similar kinds of touching, but without stimulation of F.M.'s penis, occurred on

numerous other occasions over the course of the next many months; roughly for about a year and a half. The incidents typically occurred in her bedroom, but on a few other occasions occurred in other locations as well. As she explained, almost every episode involved touching her in similar manners, and digitally penetrating her vagina. [12] The episodes ended in early 2017, roughly coinciding with the breakup or separation of F.M. and her mother, M.M. [13] With respect to Count 2, the allegations that I accepted were based on the testimony of I.M. That testimony is summarized in para. 41: [41] She testified that her father F.M. would put his hand down her pants, not in the front, but in the back, on her buttocks, inside her pants but outside of her panties. She said he "squeezes my butt". He had done so as recently as two weeks prior. He had been doing this since she was 4 or 5 years of age. It occurred at his grandparent's house on A. Road and at a previous residence on S. Road. It would occur when they were lying on his bed, watching a movie, or some other television show. Her brother J.M. was present at times. I.M. recalled telling him to stop a couple of times. She said that this occurred "often" and added that it occurred once or twice per week. He also sometimes touched her on the inner thigh, over her clothing, while they were driving together. This had occurred 3 or 4

times. [14] Those, then, are the circumstances of the offences. The Circumstances of the Offender [15] I move on to the circumstances of the offender. [16] I have the benefit of a presentence report ("PSR") as well as a psychological report prepared by a psychologist, Dr. Dugbartey. [17] The PSR provides relevant background information regarding F.M. He is presently 37 years of age. He was born in Victoria but raised in Duncan. He was raised by his parents, until he was 18. His father had problems with alcohol. F.M. obtained a baseball scholarship at age 18 and went to New Mexico for college. However, he was unable to carry on with that, due to an alcohol‑related driving conviction in British Columbia that prevented him from returning to college. [18] F.M.'s relationship with M.M. lasted for nine years. They have two biological children together, J.M. and I.M. M.M. has two children from a previous relationship, R.E. and T.E. T.E. is the victim on Count 1, I.M. is the victim on Count 2. [19] As F.M. reported, the relationship with M.M. was tumultuous. This is similar to the evidence that I heard at trial. As that relationship ended, F.M. began a relationship with another person, first name M. [20] F.M. has been employed, more or less regularly, mostly in construction. He has a Grade 12 education, and has obtained some post‑secondary vocational certificates. [21] The PSR notes

that F.M. was polite and cooperative in the interview. He denied any interest in sexual activities with young persons or children. He denies the offences occurred. [22] A theme of the report, as well as the psychological report, is abuse of alcohol and illicit drugs by F.M. for many years, which has interfered with various aspects of his life. [23] F.M.'s criminal history is limited, and essentially non‑relevant to these charges. He was convicted in September of 2001 at Duncan of the offence of driving with more than 80 milligrams of alcohol in his blood. That is the offence I referred to earlier that affected his education in the United States. There have been several recent offences, three, involving breaches of undertakings or release orders. These relate to allegations of assault against M. The assault allegations are not proceeding, but the breach allegations remain. [24] According to the PSR: [F.M.] has limited criminal history dating back to [the report says 2011, but it is 2001]. His only conviction before the courts is a drinking and driving offence. His current matters are not yet concluded. He was arrested in 2019 for assault, but the assault charges were dropped. However, the file is ongoing, as [F.M.] is currently before the courts for breach charges that stemmed from the assault file. He is also currently before the courts for sentencing for sexual interference.

He has shown a propensity towards self‑harm ideation, substance abuse, and breaching his court orders. The major factors contributing to [F.M.'s] offending behaviour are, but not limited to, substance abuse, poor coping skills, impulsivity, associates, and poor mental health. [25] Those are the most salient portions of the PSR. [26] The psychological report prepared by Dr. Dugbartey sets out the information I have already outlined concerning the offences in question. It reiterates some of the background information to which I have already referred, which is also contained in the presentence report. It also includes more detail about F.M's background, including problems with drugs, problems with alcohol, and problems with mental health, including prior episodes of self‑harm and suicide attempts. There are also numerous references in the report to the same themes of abuse of alcohol and illicit drugs. [27] Dr. Dugbartey performed a risk assessment with respect to F.M.'s risk for reoffending, and said as follows: It is my formulation from applying the RSVP that [F.M.] presents a moderate risk for criminal sexual reoffending. Aggravating factors include the duration of the offences, the defendant's continued denial of the sexual offences, as well as the circumstances of him being in a position of trust with respect to the young victims. Likely risk scenarios in the medium term may

be repeat type of offending behaviours involving the defendant's daughter or stepdaughter during periods when he is acutely intoxicated. [28] While Dr. Dugbartey says that the risk of sexual reoffending is moderate, he adds: I do not have indication that he has deviant sexual interests. While the offences are troubling, I am unable to make a diagnosis of a pedophilic disorder. [29] Finally, Dr. Dugbartey states that F.M. meets the DSM‑5 diagnostic criteria for opioid use disorder, stimulant use disorder (namely, of methamphetamines), and alcohol use disorder. F.M. also exhibits mood disorder symptoms, but Dr. Dugbartey adds: I am only able to offer a provisional diagnosis of unspecified depressive disorder at this time. He exhibits dependent personality traits that may complicate the diagnostic picture enough to warrant mental health monitoring. Impact on the Victims and Community [30] As is explained in great detail in the recent decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9 [Friesen], which I will be coming to in a few moments, the victims in this case include not only the immediate victims, T.E. and I.M., but also their mother, M.M., other members of the family, other members of the community, and the community itself. [31] The PSR specifically addresses the impact of these offences on I.M., T.E., and their mother, M.M. According to the PSR, M.M.

reported that the two victims, the children, have been traumatized by the situation, especially in a small town: Since this incident happened, she described I.M. as "very distant" and "closed off". She reported I.M. is now just angry sometimes. M.M. reported that T.E. is now dealing with depression and anxiety due to the trauma. T.E. dropped out of public school and is now going to school online. M.M. states that some days T.E. struggles to get out of bed and is no longer social. M.M. stated that her children have suffered emotionally and mentally, but also indirectly financially. [32] In summary: Overall M.M. explained her children were impacted emotionally, mentally, and financially. They continue to go to counselling for sexual intervention. They see a counsellor every two weeks, all three of them. [33] In addition, I have received a victim impact statement directly from T.E. She wrote a very articulate, frank victim impact statement which explains in significant detail the pain and trauma that she has suffered. It seems to me that, based on this, her trauma is ongoing; certainly it is of longstanding duration, and it may well be permanent. She has suffered profound harm, both psychologically, and to her life and relationships. [34] T.E.'s statement is a vivid example of the harms that are referred to extensively in Friesen. Legal Parameters [35] The offences are under s.

151 of the Code. The section imposes a minimum sentence of one year and a maximum sentence of 14 years. However, the minimum sentence, along with many other minimum sentence provisions of the Code, may no longer be considered in force or valid. I refer to the decisions of the British Columbia Court of Appeal in R. v. Scofield, 2019 BCCA 3, and the companion case, R. v. Horswill, 2019 BCCA 2. That matter has no practical effect in this case. [36] I turn to Friesen again. In para. 5, the Court states its intention as follows: [5] Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far‑reaching and ongoing harm that it causes to children, families, and society at large. The Positions of the Crown and Defence [37] The Crown contends that an appropriate sentence for Count 1 would be a term

of imprisonment of four years, and that an appropriate sentence for Count 2 is a term of imprisonment of three years, to be served consecutively. The Crown submits that there should be an adjustment to the global sentence of seven years to account for the totality principle, and therefore, in total, a sentence of six years should be imposed. [38] The defence urges a sentence of two and a half years on Count 1, one year on Count 2, for a total sentence, served consecutively, of three and a half years. Analysis [39] I refer again to the case law. Friesen sets out in detail the nature of the harm caused and the relevant sentencing principles in offences of this kind. The Crown has referred extensively to Friesen in its written submissions, which have been marked as an exhibit on this hearing. I accept the principles summarized in Friesen as set out in the Crown's written submissions. [40] Other principles that are applicable to sentencing generally are set out in the Code. I will refer to some but not all of the relevant Code provisions. [41] Section 718 sets out the fundamental purpose of sentencing. It is as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the

following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [42] The fundamental principle of sentencing is set out in the Code at s. 718.1. It is as follows: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [43] There is a special provision in the Code having to do with objectives of sentencing where the offences are against children. Section 718.01 states as follows: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [44] Other sentencing principles are set out in s. 718.2. Specifically, s. 718.2(a) of the Code sets out certain deemed aggravating circumstances. The relevant portions of this subsection state as follows: 718.2 A court that imposes a sentence shall also take into consideration the

following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, [45] Other relevant principles are set out in s. 718.2(b), (c), (d), and (e). [46] Also relevant is s. 718.3(7)(b), which states: (7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct (b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1. [47] I turn to aggravating and mitigating factors. [48] I accept the submissions of the Crown as to the relevant aggravating factors. Those are: 1. T.E. was 11 years old at the time

the sexual offending began. I.M. was four or five years at the time the abuse began. The young age of both T.E. and I.M. increases F.M.'s moral blameworthiness, and both girls will have to deal with the consequential harm of sexual violence for a longer period of time than persons victimized later in life. In any event, their youthfulness and their victimization is a deemed aggravating factor, as I have already said.

2. F.M.'s abuse of a position of trust and authority, which again is a deemed aggravating circumstance.

3. The sexual offending against T.E. and I.M. involved repeated instances over a period of years.

4. The offender's actions have clearly had a significant impact on T.E., I.M., also their mother, M.M., and other members of the family as explained, in particular, in the victim impact statement of T.E. [49] The Crown is unable to identify any mitigating factors. The defence did not identify any particular mitigating factor. The only potentially mitigating factor that comes to mind is the intersection of F.M.'s abuse of alcohol and drugs with these offences. This does not serve to reduce his moral blameworthiness for these offences, which occurred multiple times over a long period of time, and was therefore predictable to the offender. This is a minor mitigating factor at best, in my view. [50] Turning to case law, there is not much in the way of applicable case law. I have referred to Friesen, which I will refer to again in a few moments. Friesen is a decision rendered by the Supreme Court of Canada just a few months ago. It essentially makes previous decisions having to do with offences of this nature no longer applicable. That is made clear by Friesen itself, in which the Supreme Court of Canada overturned the Manitoba Court of Appeal and restored a heavier sentence that was imposed by the trial judge in that case. [51] A similar result was obtained in the companion case of R. v. Williams, a decision of our Court of Appeal, where initially (in R. v. Williams, 2019 BCCA 295

[Williams #1]) the Court of Appeal reduced the sentence imposed by the trial judge of six and a half years to four years. However, after Friesen, the British Columbia Court of Appeal was required to reconsider Williams #1 (in R. v. Williams, 2020 BCCA 286 [Williams #2]), and decided to affirm the decision of the trial judge for a sentence of six and a half years. In Williams #2, the court stated in para. 51 that Friesen set out a new analytical framework to be applied by courts in Canada to the sentencing of sexual offences against children. [52] As Justice Abrioux for the court explained in Williams #2, given Friesen, the Court of Appeal chose not to give direction to trial courts in terms of an appropriate range. Sentencing is an individualized process which must respond to each individual set of circumstances, and so that is what is required of me in this case. [53] A few more quotes from Friesen are required. In para. 50, the Court notes that: [60] To [respond effectively] to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. . . . [54] Moving on to para. 56, the Court says: [56] 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 than any physical harm" . . . [55] Paragraphs 60, 61, and 63 discuss the ripple effects of the harm on other members of the family, other members of the community, and the community itself. [56] At para. 68, the Court notes: [68] Sexual violence also has a disproportionate impact on girls and young women. . . . [57] Time does not permit me to review all of the other relevant portions of the decision which, as I indicated, is lengthy and detailed. There are, however, certain paragraphs to which I must refer. Beginning at para. 106, the Court provides specific guidance on sentence increases. One of the principles to be imposed is an upward departure from prior precedents, as I mentioned earlier. The second is that sexual offences against children should generally be punished more severely than sexual offences against adults, and the third is that sexual interference with a child should not be treated as less serious than sexual assault of a child. [58] In terms of some specific factors for determining a fit sentence, those are enumerated by the Court beginning at para.

121. The first specifically enumerated factor is likelihood of reoffending, which I have already referred to in this case. Based on the psychological report, the risk is rated as moderate. [59] The second factor specifically referred to by the Court is abuse of a position of trust or authority. That applies in this case, as I have mentioned earlier. [60] The third factor referred to by the Court is duration and frequency, and again, particularly in the case of T.E., the duration and frequency was prolonged, with numerous episodes. [61] The fourth factor referred to is the age of the victim(s), which again in this case is an aggravating factor. The victims were very young. [62] The Court also refers to the degree of physical interference as a recognized aggravating factor, while warning that the court should not pay too much regard to the precise nature of the sexual acts in question. [63] The defence in this case has provided me with some authorities, but given the pre-eminence of Friesen, the defence is obviously hampered in providing any useful guidance that detracts in any way from that decision. [64] There is the recent decision I was referred to of the British Columbia Court of Appeal in R. v. L.S.N., 2020 BCCA 109. In that case, the charge was of sexual interference, as here. The victim of the offence was the offender's 11‑year‑old stepdaughter. There were three instances

of sexual touching. Specifically, during the summer of 2016, the accused on two occasions touched the developing breasts of his then 11‑year‑old stepdaughter. On a third occasion, he lay beside her on a bed, put his hand down her pyjamas, and fondled her vagina. There was no digital penetration. [65] In that case there was one victim, and there were three episodes. The sentencing, including the argument in the Court of Appeal, predated Friesen, but the Court of Appeal was required to consider Friesen because the decision was released before the decision of the Court of Appeal was released. However, the parties declined the court's invitation to augment their earlier submissions. [66] The court imposed a sentence of two years less a day. However, the court emphasized certain factors that are not applicable here. First of all, there is the nature of the decision itself having been, as I mentioned in the course of argument, sort of a transitional case, in that it was argued prior to Friesen, without new argument occurring afterwards. [67] The court mentions at para. 96 the offender's devastating background circumstances which affect, to some extent, his moral culpability, and other exceptional circumstances identified by the sentencing judge. The court decided to impose a sentence of imprisonment of two years less a day. However, Justice Fitch for the court emphasized that the

sentence is responsive to the particular findings made by the trial judge, and the unique circumstances of this Indigenous offender. [68] Most importantly, Justice Fitch added at para. 96: For these reasons, and having regard to the direction given in Friesen, the sentence I propose is unlikely to be of precedential value in future cases. [69] So, for the reasons exactly set out by Justice Fitch himself, I am not able to give any weight to that particular decision. [70] Another decision referred to is R. v. Vautour, 2016 BCCA 497, where the sentence imposed was two and a half years. However, in my view, as it predates Friesen, I cannot rely on this decision. [71] Finally, the defence referred to a decision of the Provincial Court, R. v. J.M., 2019 BCPC 235, where Judge Doulis set out an exhaustive summary of other decisions, including a tabular summarization of them all, but again, as it predates Friesen, I am not able to rely on that decision. Decision [72] As I mentioned, the Crown in this case argues that the appropriate sentence is four years on Count 1, and three years on Count 2, served consecutively, for a total of seven years, which should be reduced to six years on account of proportionality. [73] I agree with the overall net sentence, but I would allocate it differently. I have reviewed already the factors in Friesen that almost all point to an upward range of

sentence in this case. The factors I referred to, together with the aggravating factors I referred to, do indeed refer to what the Court referred to as a mid single‑digit sentence. I would impose, with respect to Count 1, standing alone, a sentence of five years' imprisonment, not four years as the Crown urges. [74] Some of the specific factors that I would refer to in that respect would be what I have already mentioned, the long duration of these offences, the youthfulness of T.E., the repetition of the offences most especially over a long period of time. In basic terms, F.M. knew what he was doing and he continued to do it, knowing it was wrong, for a very long period of time, knowing as well the harm that he was causing. Also, the abuse of a position of trust; the nature of the acts themselves or what Friesen describes as the degree of physical interference, which was certainly serious; the profound harm to the victim; and most definitely the need for strong deterrence and denunciation of offences of this nature, as expressed so emphatically in Friesen. I also take into account the degree of risk identified in the psychological report. [75] All of those factors and the other factors I referred to demand, in my view, in this case a severe sentence that will properly respond to the needs of denunciation and deterrence. [76] With respect to the sentence for Count 2 involving

I.M., there are several similar factors, again the youthfulness of I.M., and abuse of a position of trust. The degree of physical interference in the case of I.M. is significantly less. I do not wish to diminish the harm I.M. suffered to any degree, as she unquestionably suffered harm, but I note that there is less evidence of harm in her case. Therefore, the sentence should be less on Count 2 than it is on Count 1. The submissions of the Crown reflect that, as well. So, standing alone, I impose a sentence of three years on Count 2. [77] The total of those two sentences would be eight years. However, having regard to the totality principle, which is that when consecutive sentences are imposed, the overall sentence should not be too harsh, I would reduce the sentences from eight years to six years, which is the same sentence, on an overall basis, that the Crown submitted would be appropriate. [78] The actual sentences imposed must be reduced to total the overall sentence, so the sentences to be imposed will be four years on Count 1 and two years on Count 2. I will get to the ancillary orders in a moment. [79] F.M., would you please stand. F.M., for the reasons I have indicated, I sentence you to four years' imprisonment on Count 1 and two years' imprisonment on Count 2, after taking into account the totality principle, as I explained. [80] I also impose the ancillary conditions

that the Crown sought, with some amendments. The ancillary orders to be imposed are as follows: 1. an order under s. 743.21 for non‑communication during the custodial period, that is the period of your imprisonment, with T.E., I.M., and M.M.; 2. an order for DNA pursuant to s. 487.05(1); 3. a Sexual Assault Registry order (SOIRA order) for life under s. 490.012; and 4. orders under s. 161(1), having a duration of 10 years. The orders will prohibit you under s. 161(1) from being within two kilometres of any dwelling house where T.E. and I.M. ordinarily reside, and will also prohibit you from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years. [81] Those are the orders. Anything, counsel, that needs to be addressed? [82] MS. GIRI: No, that is complete. [83] MR. SHEETS: No, thank you, My Lord. [84] THE COURT: All right. We will adjourn. "Verhoeven J."